368 P.3d 902
Wyo.2016Background
- Parents separated; child lived with Mother. Father sought custody in 2013; trial in April 2015. District court later awarded custody to Father.
- Mother designated child’s counselor, Cindy Parrish, as a will-call witness and produced counseling records, but did not designate Parrish as an expert or provide a written summary of her opinions.
- At trial Parrish described child’s drawings and statements made in therapy and, when asked what she made of the drawings, offered an opinion about the child’s wishes regarding parents.
- Father objected to Parrish’s opinion testimony as undisclosed expert opinion; the district court sustained the objection under W.R.C.P. 26 and excluded the opinion.
- Mother appealed, arguing Parrish could testify as a lay witness under W.R.E. 701 or, if expert, should have been allowed to be qualified at trial; the Supreme Court reviewed the discovery and evidence-rule issues de novo and abuse-of-discretion for evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by barring counselor’s opinion for failure to disclose under W.R.C.P. 26 | Mother: Parrish was a treating provider and a lay witness; produced records = adequate disclosure; no expert report required; counselor could be qualified at trial | Father: Opinion evidence moved beyond lay testimony and constituted expert opinion that was not disclosed or summarized per Rule 26 | Court: No abuse of discretion — Parrish’s opinion was expert in substance and Mother failed to provide the required summary; exclusion under Rule 37(c)(1) was proper |
| Whether counselor’s testimony was permissible lay opinion under W.R.E. 701 | Mother: Counselors’ in-court opinion is based on perception and helpful; not offered as retained expert | Father: Opinion relied on specialized training beyond common experience, thus requiring Rule 702 disclosure | Court: The opinion about the meaning of a therapeutic drawing and child’s statements drew on specialized knowledge beyond common experience and was not proper lay testimony |
| Whether exclusion was an inappropriate sanction (harmlessness/substantial justification) | Mother: Exclusion prejudiced her case; Winterholler factors should allow supplementation or qualification at trial | Father: Non-disclosure was not harmless; district court within discretion to exclude absent summary or timely supplementation | Court: Mother failed to supplement, make offer of proof, or show harmlessness/substantial justification; exclusion permissible under Rule 37 and Winterholler analysis |
Key Cases Cited
- Dishman v. First Interstate Bank, 362 P.3d 360 (Wyo. 2015) (de novo review of discovery-rule interpretation)
- Tucker v. State, 245 P.3d 301 (Wyo. 2010) (distinguishing lay from expert opinion; opinions grounded in training require Rule 702)
- Inman v. State, 281 P.3d 745 (Wyo. 2012) (example of permissible lay opinion based on personal perception)
- Winterholler v. Zolessi, 989 P.2d 621 (Wyo. 1999) (factors for permitting late supplementation of expert disclosures)
- Black Diamond Energy, Inc. v. Encana Oil & Gas, 326 P.3d 904 (Wyo. 2014) (discussing disclosure obligations and sanctions)
- Miller v. Beyer, 329 P.3d 956 (Wyo. 2014) (treating-provider vs. retained-expert disclosure distinctions)
- Wise v. Ludlow, 346 P.3d 1 (Wyo. 2015) (abuse-of-discretion standard and deference to evidentiary rulings)