HELENA, Mont. (Legal Newsline) - A woman who lost a lawsuit against the doctor who performed a circumcision on her son won’t get another chance to sue after the Montana Supreme Court ruled her expert’s opinion that the doctor did something wrong was properly excluded from the case.
Jade Higgins sued Dr. Theresa Augustine in April 2018, accusing her of injuring her son during a circumcision. A jury ruled for the defense after the trial judge excluded evidence from Dr. Valerie J. Flaherman that Dr. Augustine either used the wrong scissors to perform the operation or used the correct scissors improperly.
Dr. Augustine argued the plaintiff expert didn’t disclose this theory until a deposition on the eve of trial, leaving the defense ill-prepared to challenge it. The judge agreed and the jury ruled unanimously for the defense.
Higgins appealed, but the state Supreme Court, in a Feb. 8 decision by Justice Ingrid Gustafson, affirmed the verdict.
In her initial complaint, Higgins said her son was injured because the doctor didn’t restrain him correctly. But in an August 2020 filing, Higgins said Dr. Flaherman would testify that “if the baby’s leg nudged the defendant’s hand or arm while she was performing the surgery, which itself could have been prevented, the injury is still unlikely. This suggests a deviation in terms of how the defendant proceeded to do the procedure.”
Dr. Augustine’s expert witness, Dr. Jack Elder, said that “although secure placement on a Circumstraint immobilizer board helps decrease the risk the baby will move during the course of the procedure, it is impossible for a physician to eliminate all movement. Babies can and do move during circumcision, and that movement can result in inadvertent injury.”
The defendant’s lawyer asked to depose Dr. Flaherman in August 2020, renewed the request in October and November and finally managed to schedule it in January 2021. The deadline for discovery was Oct. 9, 2020.
Questioned during her deposition, Dr. Flaherman said “either incorrect scissors were used or the correct scissors were used improperly,” but she couldn’t point to anything in the medical record supporting her opinion. Augustine then moved to exclude the expert’s opinion since the theory hadn’t been disclosed in time for the defense to prepare for cross-examination.
On appeal, Higgins said her expert had disclosed before the deposition that the circumcision had been improperly performed and she merely added detail to her opinion later. Augustine said the “scissors evidence” should be excluded both because it was late and it was based entirely on speculation.
“The purpose of expert disclosures is to avoid trial by ambush and to promote effective cross examination of expert witnesses,” the state Supreme Court concluded. “Augustine had no opportunity at that time to develop contrary evidence to rebut the newly disclosed scissors opinions and also had no opportunity to consult with her own expert to supplement her own expert disclosure.”
“This prejudiced Augustine’s ability to prepare for trial and to address the newly disclosed scissors opinions,” the court ruled, rejecting a claim the trial judge abused his discretion.