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Witness Disclosures – What Is Good For the Goose

Witness disclosures are frequently an issue in jury trials. Lawyers are required to make disclosures in civil jury trials concerning what witnesses they intend to call, and what those witnesses are expected to say. The rule is intended to prevent surprise for litigants. It is also frequently used as a sword by the opposing lawyer to keep evidence out.

This became an issue in the medical malpractice claim entitled Wilson vs. Moon. In Wilson, the plaintiff’s decedent was a young man, 23 years old, who suffered a pulmonary embolism which killed him. The plaintiff’s decedent went to the emergency room complaining of shortness of breath. The plaintiff sued the emergency room physician and the hospital where the plaintiff’s decedent passed away.

During discovery the plaintiff and the defendant indicated in their witness disclosures that any available witness disclosed by any party may be called as a witness by the party that was making the disclosure. In other words, all parties claim they could use all witnesses for all purposes that had been disclosed by other parties.

Plaintiff settled with the hospital for an undisclosed amount of money, but not with the doctor.

The case with the doctor went to trial. The physician’s attorney called a witness who had been disclosed by the hospital as retained expert, a pulmonologist by the name of Dr. Tapson.  The hospital hired Tapson to testify that there was no breach of the standard of care, that no one would have suspected or diagnosed a man the age of decedent would suffer a pulmonary embolism. He also testified that it would be unreasonable for the emergency room initially to have prescribed TPA because it is very dangerous. He testified that administering heparin would not have been effective because the embolism that plaintiff claims decedent suffered was a massive saddle embolism. The heparin would not work quickly enough to stop such a large embolism from killing decedent.

The plaintiff’s lawyer objected to the admission of doctor Tapson’s evidence. He claimed that once the hospital settled, he did not expect Tapson to testify. Accordingly, he was not prepared to cross examine doctor Tapson. The trial court overruled the objection noting that all parties had agreed to call all witnesses. There is no requirement that a litigant must re-disclose witnesses once they have been disclosed.

During closing argument, the defense argued that the plaintiff’s lawyer had failed to produce a pulmonologist, like doctor Tapson, because he could not find one that would testify in his favor. Plaintiff objected, but the trial court overruled the objection.

The appellate court agreed with the trial court on all rulings and upheld the trial court’s decision. It found that since all parties had adopted all witnesses, one could not complain that they were surprised by the production of one of the witnesses. As my father used to say, what is good for the goose is good for the gander. The appellate court also indicated that the argument that plaintiff could not find a pulmonologist was a proper argument. The court specifically said that a party has a right to comment on the production of witnesses and can criticize the plaintiff’s case.

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