905 N.W.2d 568
S.D.2017Background
- Infant N.W.O. treated by pediatric gastroenterologist Dr. Steven Nanton for severe GERD from ~2 months old; Nanton prescribed Reglan (metoclopramide) intermittently over ~19 months.
- Parents observed developmental/motor problems while Reglan continued; other specialists later evaluated the child for neurologic/developmental delay.
- Plaintiffs (guardians ad litem) sued Nanton for medical malpractice, alleging Reglan caused neurodevelopmental injury; plaintiffs’ sole testifying expert was neurologist Dr. John Sabow.
- Defendant presented multiple experts who testified MRI/ultrasound imaging showed brain abnormalities present at birth and that Reglan did not cause the developmental problems.
- After defendant rested, plaintiffs sought to present undisclosed rebuttal testimony from Sabow contesting the MRI-based opinions; the circuit court excluded that untimely rebuttal testimony.
- Plaintiffs also requested a jury instruction on nonapportionment of damages for aggravation of preexisting conditions; the court refused the instruction. The jury found Nanton not negligent; the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by excluding plaintiffs’ undisclosed rebuttal expert testimony | Exclusion improper because scheduling order didn’t require rebuttal witness disclosure; rebuttal not required to be disclosed; Sabow should be allowed to respond to MRI testimony | Exclusion proper due to untimely, new opinion and prejudice to defendant | Court affirmed exclusion as harmless even assuming abuse of discretion because excluded evidence addressed causation and jury found no negligence (plaintiffs failed to show different verdict likely) |
| Whether trial court erred by refusing nonapportionment-of-damages instruction | Plaintiffs entitled to instruction if Reglan aggravated a preexisting condition and apportionment is impractical | No evidence supported aggravation theory; plaintiffs’ expert argued injury was caused by Reglan, not an aggravation of a preexisting condition | Instruction refusal affirmed because instruction was not warranted by the evidence |
Key Cases Cited
- Thompson v. Avera Queen of Peace Hosp., 827 N.W.2d 570 (S.D. 2013) (standard—abuse of discretion review for expert testimony rulings)
- Supreme Pork, Inc. v. Master Blaster, Inc., 764 N.W.2d 474 (S.D. 2009) (two-step harmless-error review for evidentiary rulings)
- Engesser, 661 N.W.2d 739 (S.D. 2003) (requirements to show reversible error from refusal to give a requested jury instruction)
- State v. Carter, 771 N.W.2d 329 (S.D. 2009) (court need not instruct on matters unsupported by the evidence)
- Schrader v. Tjarks, 522 N.W.2d 205 (S.D. 1994) (reversal requires showing excluded evidence probably would have changed verdict)