827 N.W.2d 570
N.D.2013Background
- Thompson, age 70, fractured her left distal radius after a fall on Sept 29, 2007.
- Dr. Krouse operated Oct 20, 2007 to reduce the fracture, placing a plate and screws and using fluoroscopy; he deemed the surgery successful.
- Postoperative x-rays through Jan 16, 2008 showed satisfactory reduction and alignment, according to Thompson’s doctor.
- By March 24, 2008, another surgeon found collapse of reduction and possible screw protrusion, leading to a May 1, 2008 plate and screw removal.
- Thompson sued Dr. Krouse and the hospital for negligence related to inadequate reduction and a screw in the joint; trial focused on expert testimony and jury instructions; the jury ultimately ruled for Dr. Krouse.
- Thompson challenges evidentiary rulings excluding portions of Dr. Clark’s testimony and the denial of a res ipsa loquitor instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exclusion of undisclosed expert opinion was proper | Thompson argues Dr. Clark’s new opinion should have been admitted or delayed by continuance. | Krouse contends the opinion was undisclosed and properly excluded under SDCL 15-6-37(c)(1). | Yes; court acted within discretion in excluding the undisclosed opinion. |
| Whether the deposition objection regime was waived | Thompson asserts waiver due to lack of timely objection at deposition. | Krouse contends timely objection was required to preserve error. | Waiver did not occur; the court could still exclude improper deposition testimony. |
| Whether the court properly declined res ipsa loquitor instruction | Thompson argues complete control by Krouse and lack of full information warrants res ipsa. | There was direct proof of negligence; no res ipsa warranted. | Court did not abuse discretion; res ipsa not warranted given specific proofs of negligence. |
| Whether the trial court abused its discretion in evidentiary rulings | Thompson alleges exclusion of Dr. Clark’s certain testimony prejudiced her case. | Court balanced relevance and prejudice; ruled appropriately. | No reversible error; rulings within the court's discretion. |
| Whether the verdict should be disturbed for other evidentiary issues | Thompson sought relief due to evidentiary rulings. | No basis to grant relief given the record and standard of review. | Affirmed; no basis to reverse. |
Key Cases Cited
- Zeepp v. Hofmann, 444 N.W.2d 28 (S.D. 1989) (deposition objections and waiver considerations analysis)
- Malloy v. Commonwealth Highland Theatres, Inc., 875 N.W.2d 686 (S.D. 1985) (res ipsa loquitur and negligence inference standards)
- Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558 (S.D. 1957) (res ipsa loquitur principles and when to apply)
- Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97 (S.D. 1932) (limits and sparing use of res ipsa loquitur)
- Shipley v. City of Spearfish, 89 S.D. 559, 235 N.W.2d 911 (S.D. 1975) (restatement of res ipsa prerequisites)