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Dambrowski v. Champion International

Court of Workers Compensation of Montana

October 29, 1993



          Mike McCarter JUDGE

         The matters before the Court are various objections raised at trial by petitioner's counsel regarding testimony by William R. Goodrich. The Court reserved rulings on the objections and permitted Mr. Goodrich to testify. It invited the parties to submit post-trial briefs concerning the objections and indicated it would not consider any testimony to which an objection is ultimately sustained. The parties have submitted their briefs and the matter is now ripe for decision.

         William Goodrich is a vocational rehabilitation consultant and was called on behalf of Champion International, which was both the employer and self-insurer under Plan I of the Workers' Compensation Act. Mr. Goodrich was called to testify concerning petitioner's claim of lost earning capacity. During his examination, petitioner objected to certain testimony. Initially he objected to testimony concerning the affect of ADA (the Americans With Disabilities Act) on labor market access. During colloquy with counsel it became clear that petitioner was objecting to any testimony concerning the foundation or basis for Mr. Goodrich's ultimate opinion concerning earning capacity. That foundational information was not provided in answer to an expert witness interrogatory. Petitioner expanded his objection after Mr. Goodrich identified materials he had reviewed and the analysis he had performed in reaching his opinions. Again, the basis of the objection was the failure of Champion to provide the information in advance of the trial. Petitioner's counsel ultimately interposed a general objection to testimony documents not specifically identified in response to discovery, including Mr. Goodrich's testimony as to the dollar amounts of petitioner's pre-injury and post-injury earning capacities.

         The issue framed by the petitioner in his post-trial brief is:

Whether the court should exclude the vocational testimony of William Goodrich to the extent that such testimony includes opinions or foundational information which Defendant did not provide Petitioner in answer to Interrogatory No. 20.

         The complete text of the interrogatory and its answer is as follows:

INTERROGATORY NO. 20: As to any of the individuals named in the preceding Interrogatory, state as to those witnesses who are expected to testify at the time of trial: the subject matter on which the expert is expected to testify; the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.
ANSWER: Mr. Goodrich has reviewed the medical and factual record and studied the situation, arriving at opinions concerning the Claimants [sic] employment opportunities. He believes that the Claimant has not suffered an actual loss of present earning capacity. He does not believe that the 1987 injury precluded the Claimant from working at any position at Champion that Claimant would have pursued or have been entitled or capable of holding.
Mr. Goodrich may have other opinions and Employer will make him available for deposition at the Claimants [sic] convenience.

         Ultimately, Mr. Goodrich testified to the ultimate opinions identified in answer to the interrogatory, expressing his opinion that petitioner presently has the ability to earn more, both as an employee of Champion and in employment outside of Champion, than he was earning at the time of his injury. Along the way, Mr. Goodrich provided testimony concerning the basis of those ultimate opinions, including his consideration of ADA. He also gave some intermediate opinions, such as the petitioner's earning capacity in specific dollars per hour both before and after the injury. Based on the trial colloquy with counsel, as well as the petitioner's brief, it does not appear that petitioner objects to Mr. Goodrich rendering his ultimate opinion that there was no loss of earning capacity, but rather objects to testimony regarding the foundation for that opinion and to testimony regarding any intermediate opinions reached in arriving at his ultimate opinion.

         Respondent's answer to the expert witness interrogatory is sketchy at best. In general terms it identifies the subject matter of Mr. Goodrich's testimony and his ultimate conclusions, but it certainly does not recite intermediate opinions or the facts or grounds on which Mr. Goodrich based his opinions. If the petitioner filed a pretrial motion to compel a more complete answer, the Court would undoubtedly have granted it.

         However, after considering all of the circumstances of this case, we have determined that the petitioner's motion should be denied.

         Petitioner cites numerous Montana Supreme Court cases in support of his contentions that Mr. Goodrich's testimony should be excluded. Most of those cases, however, are instances where the opposing party failed to identify the expert at all when responding to discovery. E .g., Miranti v. Orms, 253 Mont. 231, 833 P.2d 164 (1992); Tacke v. Vermeer Manufacturing Company, 220 Mont. 1, 713 P.2d 527 (1986); United First Federal Savings and Loan Association v. White-Stevens, LTD. and Thomas Stevens, 253 Mont. 242, 833 P.2d 170 (1992); Smith v. Babcock, 157 Mont. 70, 482 P.2d 1014 (1971). In other cases the identity of the expert was disclosed but the subject matter of his or her testimony was not, and the testimony is therefore excluded. E .g., Billings Clinic v. Peat Marwick Main & Co., 244 Mont. 324, 797 P.2d 899 (1990). In this case, however, the respondent identified the expert and the subject matter of his testimony, at least in general terms, including the expert's ultimate opinion regarding earning capacity. The cases cited by petitioner, as well as the Billings Clinic case, are therefore inapposite.

         In two recent cases the Montana Supreme Court has considered the exclusion of expert witness testimony where the information furnished is incomplete but nonetheless identifies the expert and the general nature of his proposed testimony. The cases are Montana Power Company v. Wax,244 Mont. 108, 796 P.2d 565 (1990) and Scott v. Dupont De Nemours & Co.,240 Mont. 282, 783 P.2d 938 (1989). In Wax the Court affirmed a trial court decision excluding expert testimony. In Scott the Court affirmed a District Court decision allowing such testimony. While the Court has not established a bright line distinguishing the two cases (the Wax decision does not mention or discuss Scott), both opinions indicate that it is within the trial court's sound discretion to determine whether to admit the testimony. As ...

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