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Malpractice verdict for doctor, barring of late expert witness affirmed

August 9, 2018

The Indiana Court of Appeals affirmed a jury verdict in favor of a doctor sued for malpractice after a patient died, finding the trial court didn’t err in limiting the plaintiff’s evidence.

In October 2009, 19-year-old Jay Shaw died from cardiac arrest during a cystoscopy and stent replacement procedure. Shaw, who had received a kidney transplant, underwent the procedure on his transplanted kidney after he arrived at the emergency room and was diagnosed with pneumonia and acute renal failure.

In October 2011, Shaw's father, James Shaw, filed a medical malpractice action against Dr. Chandra Sundaram and others, in which a Medical Review Panel found in favor of Sundaram and the other defendants. In November 2013, James Shaw sued Sundaram alleging negligence on behalf of Jay’s estate.

During a lengthy discovery process, Shaw’s counsel continually failed to timely provide the trial court with information about his expert witness’ opinions. When Shaw finally served a supplemental final witness list in September 2016, expert witness Dr. Allen Griggs was listed for the first time since the start of the two-year process, with no information regarding his opinions.

In February 2017, Shaw moved the trial court to permit him to substitute Griggs for another expert on his list, but the trial court denied Shaw’s motion and barred Griggs from testifying, saying it would be “highly prejudicial” to allow a substitute “just 47 days before a two-week jury trial.”

When Shaw requested to call Griggs as a witness during trial, the trial court denied it again, noting the “many hard and clear deadlines that had been put in place throughout the proceedings and the many extensions of those deadlines it had afforded to Shaw.”

In March 2017, Dr. Sundaram filed a motion in limine to bar any new claim not submitted to the medical review panel, including any undisclosed claim regarding informed consent, which the trial court granted.

Shaw argued the trial court erred in its denial of his request to substitute Griggs for another expert witness and by denying his request to call Griggs as a rebuttal expert witness.

The appellate court declined to second-guess the trial court’s frustrations with discovery tactics and credibility presented by Shaw’s counsel in James E. Shaw, Administrator of the Estate and as Father of Jaymes G. Shaw, deceased v. Chandra Sundaram, M.D., and Kelli Metelues,

49A02-1710-CT-2470

https://www.in.gov/judiciary/opinions/pdf/08091801jgb.pdf

It found that given the lengthy history of discovery violations and failure to timely identify both Griggs and his opinions, the trial court acted within its discretion to deny Shaw’s request for Griggs to be called as an expert witness.

“Even if we had found the decision erroneous, we would have no way of determining whether the error was reversible or not as Shaw did not make an offer of proof regarding what Dr. Griggs’s testimony would have been,” Judge John Baker wrote for the court.

The appellate court also noted that during the years-long discovery process, naming five expert witnesses, and finally electing to comply with trial court orders, not once did Shaw state that any of his experts would testify regarding informed consent.

“Moreover, at no point during the trial did Shaw make any offers of proof regarding an informed consent claim,” Baker concluded.

 

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