Alabama Appellate Watch

In Cobb v. Fisher, [Ms. 1071501] (Ala. April 2, 2009), the Alabama Supreme affirmed the trial court's striking of an expert which was disclosed in an untimely matter in a medical malpractice case.  The  and further concluded that the striking of the expert, which resulted in summary judgment for the defendant, was not technically a "sanction."

In Cobb, the plaintiff asserted medical malpractice claims against a doctor and hospital, alleging malpractice after a knee replacement.  Specifically, she alleged that bone fragments and cement was discovered in her knee after the surgery.  The trial court entered a scheduling order which included deadlines for the disclosures of experts and depositions of disclosed experts.  No party disclosed experts in accordance with the order.

Months after the disclosure dates had passed, and in the time required by the scheduling order, the hospital moved for a summary judgment, attaching an affidavit from a nurse who participated in the surgery.  The hospital also stated that it was entitled to summary judgment because the plaintiff failed to present expert testimony as required in a medical malpractice action.  The doctor filed a similar motion supported by the affidavit of the doctor himself.

Three days before the summary judgment hearing, the plaintiff responded with the affidavit of an expert.  The defendants moved to strike the plaintiff's expert's affidavit because the expert was not timely disclosed in accordance with the scheduling order. 

The trial court granted the motion to strike, and entered summary judgment for the defendants.  The trial court refused to enter a new scheduling order, saying that it would prejudice the defendants because the plaintiff was able to select its expert while having the benefit of the defendants' summary judgment motion. 

On appeal, the Plaintiff first argued that cement was a "foreign instrumentality," and that expert testimony was not required for this medical malpractice case.  The evidence showed, however, that cement was remains in the knee after a correctly performed knee replacement, so, this was not indicative of a breach so apparent as to be understood by a layman, so expert testimony was required.

The Plaintiff then argued that the sanction of striking her expert was excessive and that the trial court exceeded it discretion.  The defendants argued, and the Supreme Court agreed, that the expert was not stricken as a "sanction" -  it was just a means for the trial court to enforce its own scheduling order.  The scheduling order did not "require" the Plaintiff to disclose an expert. Instead, it provided that if an expert was to be used, the expert must be disclosed by a certain date.  Therefore, the summary judgment was not entered as a "sanction" for missing the deadline.  Rather, the trial court merely held that the expert was not disclosed in accordance with its scheduling order, and therefore the evidence could not be used.  It was therefore a failure of evidence, and not a sanction which resulted in the summary judgment.