Summary 2007 WY 3

Summary of Decision issued January 10, 2007

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Case Name: Witherspoon v. Teton Laser Center, LLC & Maura Lofaro, M.D.

Citation: 2007 WY 3

Docket Number: 06-11

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge

Representing Appellant (Plaintiff): David DeFazio of DeFazio Law Office, Jackson, Wyoming.

Representing Appellees (Defendants): W. Henry Combs III and Kathleen Swanson of Murane & Bostwick, LLC, Casper, Wyoming. Argument by Ms. Swanson.

Issue: Whether the district court properly excluded the testimony of Lorenzo Kunze based upon Appellant’s violation of the parties’ stipulation for such testimony. Whether the district court properly entered Rule 50 Judgment as a Matter of Law when no evidence existed to support a reasonable jury’s determination of a breach of duty and causation of damages.

Holding: Although Witherspoon’s brief failed to contain a statement of the issues, the Court decided her contentions were meritorious and easily identifiable from the brief and so decided to address them. Witherspoon filed an action alleging that Lofaro and Teton Laser Center had negligently administered an intense pulsed light (IPL) hair removal causing her to suffer burning and scarring. The parties entered into a stipulation allowing Witherspoon’s designated expert witness to testify by telephone. After the testimony, Lofaro and Teton Laser Center alleged that Witherspoon had violated the terms of the stipulation and requested that the expert’s testimony be stricken. The district court agreed and instructed the jury to disregard the testimony. After Witherspoon rested her case, Lofaro and Teton Laser Center moved for a judgment as a matter of law on the grounds there was no evidence produced establishing they had breached a duty to Witherspoon. The court granted the motion.

Standard of Review: As a general matter, questions regarding the evidentiary rulings of the trial court are reviewed on appeal for an abuse of discretion. A motion for judgment as a matter of law pursuant to W.R.C.P. 50 is reviewed de novo.

Striking of Expert’s Testimony: The Court’s review of the record convinced them the district court abused its discretion when it struck the testimony of Witherspoon’s expert witness. The record showed the district court refused to allow trial counsel for Witherspoon to ask the witness clarifying questions and also ignored his offers of proof. The district court offered no reason for its refusal to allow Witherspoon’s counsel to ask clarifying questions of the witness regarding the testimony elicited by defense during cross-examination. Given the gravity of the claim advanced by Defendants’ counsel on the basis of the testimony he elicited from the witness, the Court had a difficult time judging the refusal to allow clarification through redirect as reasonable. The Court found the district court’s refusal to even acknowledge counsel’s requests to make an offer of proof equally troubling. The right to offer proof is almost absolute, subject only to the court’s discretion to reasonably restrict repetitious efforts to offer the same or substantially the same type of proof which has been previously offered and its reception denied. Witherspoon’s counsel made an offer of proof to refute the allegation that he had made misrepresentations to opposing counsel and the court. The offer included specific evidence – emails, letters, and airline reservations that was not on its face, repetitious in nature. Without explanation, the district court ignored all of counsel’s offers.

On the basis of testimony he had elicited during cross-examination of a plaintiff’s witness, counsel for the Defendants leveled allegations that carried serious legal and ethical ramifications for Witherspoon’s counsel and his client. Nevertheless, without any explanation on the record, the district court refused to allow redirect of the witness and ignored all offers of proof. Under the circumstances, that was an abuse of discretion.

Judgment as a Matter of Law: The Court considered whether the striking of the expert witness’s testimony was harmless error. In granting the motion for judgment as a matter of law, the district court found that without the testimony of her expert witness, Witherspoon could not establish the requisite standard of care. In a pre-trial order denying a motion by the Defendants to strike the testimony of Kunze and for summary judgment, the district court ruled the instant case was not a medical malpractice case; that Kunze was qualified to testify as an expert witness as an IPL hair removal specialist; and that the deposition of Kunze contained evidence of possible substandard care by Dr.Lofaro. If the district court had not erroneously struck the testimony of Kunze, that evidence was sufficient for the question of whether or not the Defendants’ breached the duty of care owed to Witherspoon to be submitted for determination by the jury. Therefore, the error was not harmless.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/u4blz .