In this medical malpractice action, plaintiffs appeal from a jury verdict and judgment in favor of the defendant physician and his professional corporation. In their sole enumeration of error, plaintiffs contend the trial court abused its discretion in excluding a portion of the testimony of the medical examiner who performed the autopsy on their decedent. The trial court properly held that plaintiffs had failed to disclose the proffered expert testimony in pretrial discovery. The trial court offered plaintiffs the option of declaring a mistrial or continuing with the trial without the undisclosed expert opinion, and they chose to continue. In addition, the disputed expert testimony was cumulative of the opinion testimony of another expert witness. For these reasons, we affirm. At trial, the medical examiner testified that she was board certified in anatomic, clinical, pediatric, and forensic pathology. She performed the autopsy on the decedent and determined that the cause of death was MRSA pneumonia. Based upon her physical and microscopic examination, she concluded that the pneumonia had been present for at least a day. Plaintiffs’ counsel then asked her to assume that the decedent had burning in his chest during his office appointment with the defendant physician two days earlier. At this point, defendants objected, complaining that discovery responses had only identified the medical examiner as a witness with regard to the cause of death, not as a witness giving an expert opinion with regard to whether the pneumonia would have been present two days earlier.
Out of the presence of the jury, the trial court asked the medical examiner what her response would be to the question, and she responded, “What I am saying is if he gives me an assumption of a person having symptoms of pneumonia and I have autopsy findings of pneumonia, yes, it would be consistent with him having had pneumonia at that time.” The court then questioned plaintiffs’ counsel, who acknowledged that the medical examiner was not identified in response to defendants’ interrogatory seeking identification of each expert witness, and that plaintiffs did not disclose in writing to defendants that the medical examiner would be testifying as to whether the pneumonia was present and hence detectable at the time of the office visit. The trial court concluded that “there is violation of the discovery rules, that the medical examiner was not given as an expert witness in this area based upon the interrogatories.”
