Thursday, March 9, 2017

Expert dies, now what?

McDowell v Mo Dept of Transportation

2017 MO APP. LEXIS  (August 29, 2017) SD 34931

The court affirms a commission award that modified and increased the award for psychiatric disability following an ankle injury and denies the constitutional challenge from the employer that it did not have an opportunity to cross exam claimant’s expert because the expert died.  The court found the constitutional challenge was not adequately preserved specifically as a due process violation at the time of the hearing and did not cite a specific constitutional provision or section. 

The court declined to address whether 491.070, which identifies a statutory ight to cross examine a witness when a witness is "called" would even apply in these circumstances in which the witness was not "called' but opinions were submitted by motion pursuant to 287.210.7.  The court notes the appellant did not fully develop the issue and it was deemed abandoned. 

2017 MOWCLR Lexis 24
March 3, 2017

The Commission addressed an interesting problem:  what happens when someone submits an expert opinion by 287.210.7 motion and the expert dies before a party performs a cross exam?

In August 2014 claimant submitted a motion to submit a report of Dr. Stillings, his expert, into evidence. Dr. Stillings had assessed disability for a mood and pain disorder following an ankle injury. Dr. Stillings died in March 2015.   Employer concedes it had 7 months to schedule the cross-examination but postponed the deposition until the employer obtained its own expert opinion.  The employer concurred claimant's accident caused a psychiatric condition but stated that it resolved without causing a permanent condition.

The commission affirmed the decision to over-rule to objection and allow the report into evidence.

The commission declined to consider the constitutional challenge that allowing the report without cross examination   denied a right to cross exam under 491.070.  The commission found 287.210.7 required only a reasonable opportunity after motion to depose the expert, and 7 months was reasonable. On appeal, the commission enhanced the psychiatric award from 2% to 10%. 

In a prior case, the ALJ had allowed admission of a report by a deceased expert. 

Claimant's expert died 6 years after an IME depriving the employer of an opportunity for cross exam.  The ALJ admitted  the report  and relied upon it as a basis to award permanent and total disability benefits.   Graham v LATCO Contractors Inc., 2014 MO WCLR Lexis 52.