APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. HONORABLE MERTON B. TICE, JR. Judge.
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON OCTOBER 5, 2009
[¶1.] Jeanine Corcoran was injured in an automobile accident caused by David McCarthy. Corcoran brought suit against McCarthy and his employer (collectively McCarthy) for chronic pain, mental anguish, and loss of enjoyment of life. Following a jury award of substantial damages, McCarthy discovered that Corcoran had failed to disclose and produce requested medical records relating to treatment she had received for preexisting psychological problems. McCarthy moved for relief from the judgment, contending that Corcoran's failure to disclose deprived him of his ability to fully and fairly prepare or present a defense to Corcoran's claim for damages relating to loss of enjoyment of life and emotional distress. The circuit court granted the motion and ordered a new trial on damages. On reconsideration, the order granting a new trial was vacated. McCarthy appeals. We reverse and remand for reinstatement of the order granting a new trial on damages.
Facts and Procedural History
[¶2.] On January 4, 2005, Corcoran was turning into her driveway when McCarthy, who was unable to stop on a snow-covered hill, struck her vehicle. She filed suit in November 2006, alleging chronic back pain that caused mental anguish and diminishment of her ability to enjoy the ordinary pursuits of life.
[¶3.] McCarthy served a request to produce Corcoran's medical records. The request not only included medical records generated in connection with the accident, but "any and all medical records of any medical treatment received by [Corcoran] from any medical practitioner for a 10-year period prior to the accident in question." Corcoran responded: "See attached medical records" and, "We will endeavor to locate and divulge."
[¶4.] During Corcoran's deposition, defense counsel learned that in 2003, Corcoran had been in therapy with a counselor. Those medical records had not been disclosed or produced. Corcoran's counsel represented that the counseling only related to problems Corcoran was encountering raising her son, who had special needs. Corcoran's counsel also represented that the records did not have anything to do with this litigation. Following a discussion, McCarthy's counsel requested that the records be produced. Corcoran's counsel responded: "We'll get you a copy." After nearly a year, Corcoran's counsel had not produced the 2003 records, and McCarthy renewed his request for production. Corcoran's counsel then declined production claiming that the records were not relevant and would not lead to relevant information. Corcoran's counsel later relented and produced the 2003 records.
[¶5.] The subject of this appeal involves similar 2000 and 2006 psychological treatment records that Corcoran's counsel possessed but never disclosed or produced. These undisclosed records first came to light when Corcoran moved for disbursements after trial. The motion for disbursements sought recovery of the cost of obtaining copies of the records. The motion reflected the undisclosed records had been provided to Corcoran's counsel by Dr. R.P. Renka, a medical doctor with Black Hills Psychiatry Associates. The records documented therapy provided by psychologists Thomas G. Terry and Roberta Kramlich under Dr. Renka's supervision.*fn1 The records reflected that Corcoran -- who was described by her witnesses at trial as "energetic," "enthusiastic," and with "emotional stability" prior to the accident -- had been in therapy twenty-four times between February and August 2000 (before the accident), and on four occasions in 2006 (after the accident). The psychologists treated Corcoran for chronic depression, anxiety, panic attacks, and other problems Corcoran had been experiencing relating to her son and problems at school. Although the post-accident records reflect a variety of complaints, and although a major portion of Corcoran's trial damages was based on a claim of chronic back pain from the accident that would require lengthy and costly treatment, the 2006 records make no reference to chronic back pain. They only reflect one passing notation to Corcoran having received an epidural for back pain.
[¶6.] Because Corcoran disclosed shortly before trial that she was seeking damages for an extensive future course of treatment for chronic pain, McCarthy requested that Corcoran undergo an independent medical examination (IME). The request was based on Corcoran's disclosed medical records and McCarthy's expert, Dr. Neil Pitzer. Dr. Pitzer opined that: (1) preexisting depression and fatigue were likely complicating factors in Corcoran's pain complaints, (2) those conditions were not related to the motor vehicle accident, and (3) it was likely that Corcoran's ongoing pain complaints were related to these preexisting conditions. The circuit court denied the request for an IME because, in the court's view, the disclosed medical records did not indicate that Corcoran had been diagnosed with depression by a psychologist or psychiatrist.
[¶7.] At approximately the same time, Corcoran moved to preclude Dr. Pitzer from testifying that her preexisting depression and anxiety were a cause of her pain complaints. She further moved to prevent the defense from "mentioning any evidence, arguments, references, testimony or other evidence, concerning any psychological condition" of Corcoran without an expert in psychology. The court granted the motions because again, based on its review of the disclosed records, the court observed "no evidence to support . . . a diagnosis of depression . . . anxiety, or panic disorders." The court stated:
I have looked at the medical reports upon which the doctor will be testifying.*fn2 There's no evidence to support that there has been a diagnosis of depression. There is no evidence to support there is anxiety or panic disorders. . . . There is no diagnosis of depression that I can see. . . . You can reference the fact that she was taking Zoloft, but you cannot reference the fact that she was taking Zoloft because she was depressed.
When McCarthy then inquired whether this ruling would permit Dr. Pitzer to give his opinions regarding depression and how it affected Corcoran's claim of chronic pain, the court ruled:
You can talk about the medical records pre-accident as long as you don't discuss diagnoses of depression, anxiety, or manic disorders. They have not been diagnosed. They were referenced as possibilities, but they were not diagnoses from which [Dr. Pitzer] is capable of drawing a conclusion in my view.
[¶8.] At trial, Corcoran's requested damages were substantially based on her claim of chronic pain causing mental anguish and loss of enjoyment of life. She also introduced evidence of mental difficulties allegedly caused by the accident. The principal at Corcoran's school testified that one of the biggest changes in Corcoran after the accident was in "emotional stamina." Another co-worker suggested Corcoran was suffering depression caused by the accident: that "there was some depression after the accident."
[¶9.] Corcoran successfully proposed a jury instruction allowing damages for "mental anguish, and loss of capacity of the enjoyment of life." She then argued that her loss of enjoyment of life was "the question." Corcoran told the jury that her "passion [was] teaching" and that the accident had taken that passion from her. Counsel argued:
She loves it . . . . We all have our passions. [McCarthy has] robbed the joy from that passion. [McCarthy] has taken that from her. She'll never have it again. The rest of her life is different. It's painful and there is incredible loss of enjoyment of life[.]
Although McCarthy's defense was that unrelated depression was a contributing cause of the pain complaints, Dr. Pitzer's testimony was restricted and impeached. Corcoran argued that Dr. Pitzer was a "hired gun" whose examination only included a review of Corcoran's medical records.
[¶10.] The jury returned a verdict of $580,000. Because the 2000 and 2006 medical records had been formally requested but not disclosed or produced until after trial, McCarthy moved for relief from the judgment under SDCL 15-6-60(b)(3).
McCarthy contended that Corcoran's failure to produce was "misconduct" by an adverse party within the meaning of the statute. McCarthy further contended that the failure to produce prevented him from fully and fairly preparing or presenting his defense. The circuit court granted the motion and ordered a new trial on damages.
[¶11.] Corcoran moved to reconsider. Upon reconsideration, the circuit court vacated its order for new trial. The court's formal order reflects its ...