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Morgan v. Demos

Supreme Court of Idaho

March 19, 2014

MARVIN F. MORGAN, Plaintiff-Appellant,

2014 Opinion No. 36

Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Jon J. Shindurling, District Judge.

The judgment of the district court is affirmed in part and vacated in part.

M. Brent Morgan, Chtd., Pocatello, for appellant. M. Brent Morgan argued.

Carey Perkins LLP, Boise, for respondents. Matthew F. McColl argued.

J. JONES, Justice. Chief Justice BURDICK, and Justices EISMANN, W. JONES, and HORTON CONCUR.


J. JONES, Justice.

Appellant Marvin F. Morgan appeals the dismissal of his wrongful death action under I.R.C.P. 40(c), as well as an order imposing sanctions against him and his former attorney pursuant to I.R.C.P. 37(a)(4). We affirm the judgment dismissing the case without prejudice but vacate the order granting sanctions.



Marvin F. Morgan, acting through his former counsel Lowell Hawkes, filed a complaint against Dr. John Chambers, Dr. Michael Demos, and the Idaho Heart Institute (" Respondents" ) on August 3, 2006. Therein, Morgan asserted that he was entitled to special and general damages as a result of the wrongful death of his wife, Ella Morgan. In

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[156 Idaho 183] January of 2004, Mrs. Morgan underwent testing at the Idaho Heart Institute in Idaho Falls. After reviewing Mrs. Morgan's test results, Dr. John Chambers recommended that she return for an angiogram. The Morgans expected that Dr. Chambers would perform the angiogram. On February 3, 2004, Mr. Morgan drove Mrs. Morgan to the Idaho Heart Institute for her scheduled angiogram. Morgan asserts that it was not Dr. Chambers who performed the angiogram, but Dr. Michael Demos, a doctor who neither of the Morgans had ever met. Morgan alleges that Dr. Demos negligently performed the angiogram, " causing a dissection and damage to Mrs. Morgan's heart and right coronary artery, creating a medical emergency which then necessitated a high-risk medical procedure in an attempt to repair the damage." Mrs. Morgan passed away on February 24, 2004, purportedly because of complications resulting from the angiogram performed by Dr. Demos.

Respondents served their first set of interrogatories on October 19, 2006, requesting information regarding Morgan's expected expert witnesses. Morgan responded that his expert witnesses had yet to be determined but that his " [a]nswer will be supplemented upon determination of those experts which Plaintiff intends to call as an expert witness at the trial." On January 3, 2007, Respondents followed up with a new interrogatory that mirrored I.R.C.P. 26[1] and asked for " a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." Morgan responded on February 5, 2007, that " [e]xpert witnesses have not been determined" but that his " [a]nswer will be supplemented upon determination of those experts." On November 23, 2007, Respondents filed a motion for summary judgment. Morgan requested an extension of time in order to respond to Respondents' summary judgment motion. The district court assented and on May 28, 2008, Morgan filed his memorandum in opposition to Respondents' motion for summary judgment, which was supported by the affidavit of Dr. Jay N. Schapira, a board-certified cardiologist. This affidavit did not include any of Dr. Schapira's testimonial history.

The district court held a hearing on Respondents' motion for summary judgment on June 9, 2008. The district court ultimately denied Respondents' motion based on its finding that Dr. Schapira's affidavit showed a genuine issue of material fact existed as to liability. Trial was set for March 30, 2009, and both parties were ordered to disclose their expert witnesses no later than 90 days before trial. On November 28, 2008, Morgan officially disclosed Dr. Schapira as one of his expert witnesses but, again, no testimonial history was included within that disclosure. Morgan supplemented his disclosure two more times on December 1, 2008, again omitting any testimonial history.

On March 20, 2009, ten days before trial was to begin, Respondents filed their first motion to exclude Dr. Schapira pursuant to Idaho Rules of Civil Procedure 26 and 37, on the grounds that Morgan had failed to provide Respondents with a complete history of Dr. Schapira's testimonial history. The district court held a hearing on this issue on March 24, 2009, and ordered Morgan to provide a complete list of Dr. Schapira's testimonial history by noon of the next day. Within thirty-five minutes of the conclusion of the hearing, Morgan provided a list of Dr. Schapira's testimonial history to Respondents. That list, however, proved to be incomplete.

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[156 Idaho 184] The list omitted at least four cases, including Bond v. United States, 2008 WL 655609 (D. Or., 2008).[2] In Bond, the trial judge noted:

Dr. Schapira also is a very experienced medical/legal expert witness who charges $10,000 per day and who has testified at trial more than 100 times in his career; at least 20 times between 2000 and 2005. In 2005, he testified in depositions as many as 42 times . . . .

[WL]. at *4. The list given to Respondents contained only five cases in 2008 and none in 2009. In light of Dr. Schapira's extensive testimonial history in prior years, as noted by the court in Bond, the Respondents deduced that numerous cases were missing from the list. Based on this " seemingly incomplete list," Respondents filed a renewed motion on March 25, 2009, to exclude Dr. Schapira. On the day that trial was to commence, March 30, 2009, the district court instead entertained Respondents' renewed motion.

At the March 30 hearing, Morgan's counsel, Lowell Hawkes, stated, " [t]he failing here, Your Honor, is mine in terms of not supplementing that interrogatory answer." The district court responded:

I really don't see anything that tells me that this is--that the information is being withheld for any sort of untoward reason. I think it's carelessness. It's carelessness on the part of Dr. . . . Schapira to keep record, and he obviously testifies enough throughout the country, including a considerable amount in federal court, to know that these rules are in place. . . . But there's also a problem here with Mr. Hawkes, as he humbly admits today that he didn't follow through and didn't get this information out. . . . I think the defendant is entitled to have access to this information in order to prepare adequately for trial. On the other hand, I don't think that the remedy of excluding the witness, which may gut the plaintiff's case, is fair to the plaintiff. So the resolution that would seem to be best would be to continue the trial, and I think the case law is supportive of that, in order to facilitate further inquiry.

The trial was then reset for October 6, 2009.

On May 1, 2009, Respondents filed a motion for sanctions, seeking expenses, fees, and costs incurred as a result of the trial being reset. At a June 22 hearing, the district court granted the Respondents' motion. In its resulting Order Re: Motion for Sanctions, the district court ordered " Plaintiff and/or Plaintiff's counsel to pay . . . $5,000.00 as an expert witness fee for the retained and disclosed expert witness Craig Selzman, M.D.; travel expenses in the amount of $1,740.88 for Defendant Michael Demos, M.D.'s travel from Durango, Colorado; travel agency fees relative to booking and canceling hotels and airfare for Defendant Michael Demos, M.D. and Defendants' expert witnesses in the amount of $120.00; and attorney fees . . . in the amount of $3,135.00" for a grand total of $9,995.82. The district court outlined its rationale for this award not in the ...

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