Verdicts

The trial court dismissed the malpractice claim and Baker proceeded to a bench trial on his other claims. At trial, the Government presented two doctors ' Dr. Daniel J. Canter and Dr. Paul A. Hatcher ' as expert witnesses. They both observed that although an earlier biopsy would have revealed the tumor at an earlier date, such more timely discovery would have had no effect on the outcome, as Baker was not then nor was he later a suitable candidate for Mohs' surgery or brachytherapy.

Thus, even if testing had been conducted immediately after Baker sought treatment, in both Government experts' opinions, a partial penectomy would have been the best option. The court found this and other Government testimony credible. Therefore, it found that even if the Government unreasonably delayed the plaintiff's treatment, such misconduct did not cause compensible harm, as the outcome ' the plaintiff's need for a partial penectomy ' would have been the same either way.

In this appeal, Baker argued that the Government failed to disclose the nature of Dr. Hatcher's testimony ' that Moh's surgery and brachytherapy were never a medically viable option for him ' prior to trial. The plaintiff claimed that testimony should therefore have been excluded. The Fourth Circuit reviewed the admission of Dr. Hatcher's undisclosed testimony for abuse of discretion and found none, even after noting that, according to Fed. R. Civ. P. 26(a)(2)(B)(i), expert disclosure “must be accompanied by a written report” containing “a complete statement of all opinions the witness will express and the basis and reasons for them.”

The saving grace for the proper admission of Dr. Hatcher's testimony was found in Fed. R. Civ. P. 37(c)(1), which states that if a litigant does not provide the requisite expert disclosure, “the party is not allowed to use that ' witness to supply evidence ' at a trial, unless the failure was substantially justified or is harmless.” The test for determining whether a party's failure to properly disclose an expert was either “substantially justified” or “harmless,” contains five factors: 1) the surprise to the party against whom the evidence would be offered; 2) the ability of that party to cure the surprise; 3) the extent to which allowing the evidence would disrupt the trial; 4) the importance of the evidence; and 5) the non-disclosing party's explanation for its failure to disclose the evidence. S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)).

The Fourth Circuit found that although there was surprise to the plaintiff in Dr. Hatcher's testimony, its similarity to Dr. Cantor's opinions ' which opinions the trial court found credible ' negated any potential harm to the plaintiff. Because there was no showing of prejudice, they found no error in the trial court's admission of Dr. Hatcher's testimony.

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