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Wednesday, June 12, 2024 | Back issues
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Podiatrist Can’t Block Expert’s Testimony

(CN) - A West Virginia podiatrist failed to convince a federal judge to significantly restrict expert witness testimony in a wrongful death case.

Dawn Denise McComas, executrix for the estate of Billie Plymale, sued Dr. Kirt Thomas Miller in the Huntington, W. Va. Federal Court.

She claims the podiatrist's failure to diagnose with malignant melanoma while treating Plymale for a non-healing wound on the bottom of her foot greatly lessened her change of survival and contributed to her death.

In her complaint, McComas says Plymale was treated by Miller for exactly a year, from May 2011 through May 2012, during which time she made regular visits to the podiatrist's office.

Miller did take steps to facilitate the healing of the wound, but never performed a biopsy, the McComas contends would have revealed the malignant melanoma.

It was only after Miller referred Plymale to a dermatologist and a biopsy was performed that the cancer was revealed, the complaint says. Plymale died of metastatic disease related to the melanoma on July 24, 2013.

After the filing of the lawsuit and the start of discovery, Miller filed a motion to exclude the testimony of the plaintiff's expert witness, and four additional motions to greatly curtail the expert's testimony if he was allowed to appear.

Specifically, Miller sought to exclude testimony on any element of economic loss other than funeral bills and related out-of-pocket expenses; that would constitute a criticism of his treatment of a tissue sample taken during his care of Plymale; and on anything relative to punitive damages, including videotaped testimony from Plymale herself.

Of these, Chief U.S. District Judge Robert Chambers denied all but the last, although he offer some consolation by stating that while Miller did not prevail on the majority of his motions, his arguments, "certainly cannot be characterized as frivolous or made in bad faith."

Turning to the matter of punitive damages, Judge Chambers noted the plaintiff based her demand for them on the assertion that Miller engaged in "wanton, willful, or reckless conduct" while treating Plymale.

However, he said, even the plaintiff's own expert admitted during his deposition that he had no criticism of Miller's podiatric care, and based on court documents, the plaintiff has offered no evidence that would suggest anything more than negligence is in question when assessing the podiatrist's care.

Based on this, he said, "There does not appear to be sufficient factual or legal support for punitive damages."

The last issue Chambers addressed was Plymale's videotaped statement. The tape was made the day the lawsuit was filed, four days before Plymale died.

"Defendant was not afforded any notice of the interview and only received a transcript of the interview through discovery on December 4, 2013," the judge wrote.

He then went on to discuss Rule 27, which he explained provides a procedural mechanism though which a party can preserve testimony prior to or coincident to initiating a suit.

"While compliance with Rule 27 may well have settled the admissibility of the statement, Plaintiff apparently failed to make any attempt to follow the prescribed petition and notice procedures," he wrote. 'Instead, Plaintiff argues that exclusion is not warranted based on a failure to follow 27. Plaintiff further offers that the videotaped statement by Mrs. Plymale amounts to a 'day-in-the-life' video, demonstrating Mrs. Plymale's condition at the time.

"Given that Plaintiff did not make any attempt to conform to Rule 27, that rule certainly cannot render the videotaped statement admissible" and "Plaintiff has not cited any other evidentiary rule that would render the state admissible," Chambers wrote.

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