Home > Legal Library > Article

Join Matindale-Hubbell Connected

Exclusion of Expert Testimony When Opinion Not Disclosed Before Trial

Kathleen Hopkins Alsina
Phelps Dunbar LLP - Houston Office

Jane R. Goldsmith
Phelps Dunbar LLP - Baton Rouge Office

November 8, 2013

Previously published on November 2013

A recent Mississippi Supreme Court case held that the trial court should have excluded testimony of an expert based on the fact that the expert’s theory at trial was an entirely new theory that was not disclosed before trial. In Cleveland, et al. v. Hamil, --- So. 3d ---. 2013 WL 4027103 (Miss.), a patient was admitted to the hospital with severe abdominal pain. The patient was treated by Dr. Smith-Vaniz, a gastroenterologist, and Dr. Cleveland, a cardiovascular surgeon, who performed surgery to repair an ulcer. Approximately one week later, after the patient had been released from the hospital, he returned to the hospital with further abdominal pain. A second surgery revealed that the patient had a second ulcer which had eroded a large blood vessel and caused his death.

The plaintiff filed suit against the doctors who had treated the patient and Jackson HMA, Inc., alleging wrongful death. During discovery, the plaintiff’s expert expressed an opinion that the doctors had deviated from the standard of care by failing to prescribe anti-ulcer medication upon the patient’s discharge from the hospital, thereby allowing the second ulcer to develop. During trial, the plaintiff’s expert admitted that he later became aware that the doctors had prescribed the anti-ulcer mediation upon discharge. However, at trial, the expert changed his theory to support his conclusion that the doctors had deviated from the standard of care by testifying, over objection from the defendants, that the second ulcer was developing during the patient’s hospital stay and the doctors should have discovered it prior to his discharge.

The jury returned a verdict against all three defendants, and the Court of Appeals reversed. With regard to the judgment against Dr. Smith-Vaniz, the court held that the plaintiff’s expert was not qualified to provide an opinion as to the standard of care for a gastroenterologist. The court also rendered judgment in favor of Jackson HMA, because Jackson HMA could only be vicariously liable for the acts of Dr. Smith-Vaniz. With regard to Dr. Cleveland, the Court of Appeals found that the plaintiff’s expert was qualified to render an opinion as to the standard of care of Dr. Cleveland, but concluded that allowing the expert to testify at trial amounted to trial by ambush. Therefore, the court remanded the case against Dr. Cleveland for a new trial. Dr. Cleveland filed a petition for writ of certiorari which was granted by the Supreme Court.

In order to establish a prima facie case of medical malpractice, a plaintiff must prove 1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; 2) a failure to conform to the required standard; and 3) an injury to the plaintiff proximately caused by the breach of such duty. Expert testimony is required to establish the second and third prongs.
The Supreme Court held that the Court of Appeals erred by not rendering judgment in favor of Dr. Cleveland. The Court stated that, although the plaintiff’s expert was qualified as an expert in cardiovascular surgery, his theory at trial was an entirely new theory that was not disclosed before trial. Thus, the trial judge should have excluded his testimony as inadmissible, leaving the plaintiff without any admissible expert testimony to establish that Dr. Cleveland breached the standard of care.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

View More Library Documents By...

Phelps Dunbar LLP
Houston Office
Baton Rouge Office
Baton Rouge Office
Phelps Dunbar LLP Overview