Shelley S. McDOUGAL and David L. McDougal, Plaintiffs Below, Appellants v. Julie K. McCAMMON, M.D., Defendant… (West Virginia 1995)

Summary

The court held that the surveillance video was relevant and sufficiently authenticated to impeach or contradict the plaintiff's testimony about the extent of her injuries, although the defendant's failure to disclose or supplement discovery was a willful violation that ordinarily warranted exclusion. The trial court should have applied the discovery-sanction factors and excluded the tape, but its admission was harmless because the tape concerned damages rather than liability, the remaining evidence independently supported the verdict, and the plaintiffs did not seek a continuance or recess. The judgment for the defendant was therefore affirmed.

Holding

Admissibility of surveillance video as impeachment or contradiction evidence. The surveillance video was admissible because it was relevant to the extent of the plaintiff's injuries and required only relevancy and authenticity as threshold foundations. The video was not a prior inconsistent statement, and the court found no preserved authenticity objection or abuse of discretion in the evidentiary ruling.

Effect of the discovery violation and asserted work-product protection. The defendant violated the discovery rules by failing to disclose the existence of the surveillance video or supplement an inaccurate discovery response. The work-product doctrine did not justify leaving the response uncorrected, and the trial court should have applied the governing factors and excluded the video, principally because the nondisclosure was willful.

Harmlessness and preservation of unfair surprise. Admission of the video was not reversible error because it did not affect the liability issue, the remaining evidence independently supported the verdict, and the plaintiffs did not move for a continuance or recess to address the surprise. A party seeking to preserve an unfair-surprise claim for appeal must at least request a continuance or recess.

Shelley S. McDOUGAL and David L. McDougal, Plaintiffs Below, Appellants v. Julie K. McCAMMON, M.D., Defendant…

Summary

Holding

Cited authorities

Cited by