2013 S.D. 8
S.D.2013Background
- Thompson fractured her left distal radius after a fall and was treated at Avera Queen of Peace Hospital.
- Dr. Chris Krouse performed a left wrist surgery on October 20, 2007 to reduce the fracture and implanted a plate and screws.
- Postoperative x-rays and follow-ups occurred; Thompson’s condition appeared satisfactory on January 16, 2008.
- In March 2008, a second surgeon, Dr. Curd, found reduced/worsened alignment and a screw potentially protruding into the joint space, leading to removal surgery on May 1, 2008.
- Thompson sued Dr. Krouse for medical malpractice alleging inadequate reduction and a screw in the joint; expert Dr. Clark offered additional opinions late in the case.
- The circuit court excluded portions of Dr. Clark’s testimony that were undisclosed expert opinions and Thompson sought a res ipsa loquitor instruction, which the court denied; the jury returned a verdict for Krouse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by excluding undisclosed expert opinion | Thompson asserts Krouse waived objections by not timely objecting in deposition. | Krouse contends the testimony was an undisclosed new opinion requiring exclusion under SDCL 15-6-37(c)(1). | Yes; court did not abuse discretion in excluding the undisclosed opinion |
| Whether exclusion of the opinion prevented Thompson from presenting her case | Exclusion effectively dismissed her claim and denied her day in court. | Exclusion did not bar other admissible evidence of negligence; not a default judgment. | No; exclusion did not prevent Thompson from presenting essential evidence |
| Whether the trial court erred in denying res ipsa loquitor instruction | Res ipsa loquitor applies when negligence is inferred from circumstances where the act is unknown. | There was specific proof of negligence; res ipsa loquitor not applicable. | No; trial court properly refused the instruction |
Key Cases Cited
- Zepp v. Hofmann, 444 N.W.2d 28 (S.D. 1989) (trial court's discretion in admitting/excluding expert testimony; deposition objections)
- Carpenter v. City of Belle Fourche, 2000 S.D. 55 (S.D. 2000) (standard for reviewing the denial of jury instructions; prejudicial error)
- Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97 (S.D. 1932) (res ipsa loquitor should be invoked sparingly)
- Malloy v. Commonwealth Highland Theatres, Inc., 375 N.W.2d 631 (S.D. 1985) (res ipsa loquitor; absence of specific proof)
- Shipley v. City of Spearfish, 235 N.W.2d 911 (S.D. 1975) (limitations on res ipsa loquitor in negligence cases)
- Schmeling v. Jorgensen, 84 N.W.2d 558 (S.D. 1957) (negligence inference principles for res ipsa loquitor)
- Fleege v. Cimpl, 305 N.W.2d 409 (S.D. 1981) (proof standard for res ipsa loquitor continuation range)
- Krouse v. Thompson (hypothetical for context), not applicable (—) (continues to support standard of care discussion in opinion)