808 S.E.2d 626
S.C. Ct. App.2017Background
- Burke slipped and fell on a raised curb in a City-leased parking lot in January 2013 and sued Republic (operator), Indigo (owner), and the City, alleging poor lighting and a hidden hazard caused the fall.
- Burke settled with Indigo and the City the week before trial; Republic proceeded to trial defending causation and damages.
- Republic sought to call Dr. Todd Shuman as an expert; Burke moved in limine to exclude him, asserting Republic had not timely identified Shuman in discovery.
- The trial court excluded Shuman solely because Republic did not supplement interrogatory responses naming him, despite Shuman having been deposed and listed in Republic’s pre-trial brief.
- Shuman’s proffered testimony would have disputed causation and the extent of Burke’s injuries by attributing the fall or poor recovery to preexisting medical conditions.
- The jury returned a verdict for Burke; the trial court denied Republic’s post-trial JNOV/new-trial motions. Republic appealed, arguing the exclusion was an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by excluding Republic’s expert for failing to timely disclose him | Burke: exclusion appropriate because Republic never supplemented interrogatories to identify Shuman, and late naming justified exclusion | Republic: exclusion was improper because Shuman had been disclosed by the City earlier, was listed in Republic’s pre-trial brief, deposed, and Burke suffered no surprise or prejudice; the court should have applied the Jumper factors before excluding | Court: Reversed — exclusion was an abuse of discretion because the trial court excluded Shuman solely for untimely notice without considering the required Jumper factors; the error was prejudicial and a new trial is ordered |
Key Cases Cited
- Barnette v. Adams Bros. Logging, 355 S.C. 588 (S.C. 2003) (trial court must consider specified factors before excluding a late-disclosed witness)
- Jumper v. Hawkins, 348 S.C. 142 (Ct. App. 2001) (Courts must consider multiple factors rather than focus solely on pretrial order noncompliance)
- Bryson v. Bryson, 378 S.C. 502 (Ct. App. 2008) (upholding exclusion where Jumper factors showed significant surprise and prejudice)
- Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475 (Ct. App. 2005) (prejudice requires a reasonable probability the verdict was influenced by excluded evidence)
- State v. Cope, 385 S.C. 274 (Ct. App. 2009) (reversal required only where excluded expert evidence prejudiced the appellant)