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

Summary

The Supreme Court of Appeals of West Virginia affirmed a defense verdict in a medical malpractice action arising from permanent nerve damage allegedly caused during a hysterectomy. The court held that an undisclosed video surveillance tape of the plaintiff was admissible as impeachment-by-contradiction evidence requiring only relevancy and authenticity, but that the defendant's willful failure to supplement her discovery answers under Rule 26(e) meant the tape should have been excluded under the Prager factors, which the court applied de novo because the trial court made no findings. Because the tape bore only on damages and the plaintiffs lost on liability, its admission was harmless error. The court also announced that a party must move for a continuance or recess to preserve a claim of unfair surprise for appeal.