Robert J. Burke, Respondent,
Republic Parking System, Inc., Appellant. Appellate Case No. 2015-000269
June 6, 2017
From Charleston County R. Markley Dennis, Jr., Circuit Court
S. Ruparelia and Sarah Patrick Spruill, both of Haynsworth
Sinkler Boyd, PA, of Greenville, for Appellant.
Clayton B. McCullough and Jamie A. Khan, both of McCullough
Khan, LLC, of Charleston, for Respondent.
Republic Parking System, Inc. (Republic) filed this appeal
following a jury verdict in favor of Respondent Robert J.
Burke. Republic claims the trial court erred by denying its
motions for judgment notwithstanding the verdict (JNOV) and a
new trial based on many arguments including that the trial
court erred by excluding its expert witness. We agree the
trial court erred by excluding Republic's expert witness
and reverse for a new trial; thus, we decline to address
Republic's remaining arguments.
complaint, Burke alleged he was a customer in the George
Street parking lot (the Lot) in Charleston at approximately
7:00 p.m. in January 2013. Burke claimed he parked his car
and attempted to exit the Lot on foot when he tripped and
fell on a "raised curb" inside the Lot. Burke
asserted the curb "was virtually hidden" due to
"extremely low and poor lighting conditions." Burke
named as defendants Republic, Indigo Realty Company, LLC
(Indigo), and the City of Charleston (the City). Burke
alleged Indigo owned the Lot and leased it to the City who
then contracted with Republic to operate the Lot. Burke
claimed Republic operated and managed the Lot and was
responsible for keeping it free of hazardous conditions,
maintenance, and repairs.
settled with Indigo and the City the week before trial.
During a motion in limine on the morning the trial began,
Burke moved to exclude Republic's expert witness, Dr.
Todd Shuman. Burke admitted the City named Shuman as an
expert during discovery but claimed only the City named him.
Burke asserted that fact was a consideration in his decision
to settle with the City. Republic claimed it did not name Shuman
in its discovery responses because the City had named him and
did not settle with Burke until the week prior to trial.
Republic claimed, however, that it did name Shuman in its
pre-trial brief served the Friday before trial. Also,
Republic asserted it had a fee sharing agreement with the
City for compensating Shuman. Republic pointed out Burke
would not be prejudiced or surprised by Shuman's
testimony because he had been aware of Shuman and had taken
trial court inquired whether Republic ever supplemented its
interrogatories, and Republic admitted it had not. The trial
court then excluded Shuman because Republic failed to file a
supplemental interrogatory. The trial court explained it was
excluding Shuman because Republic answered interrogatories
and did not identify an expert witness. The trial court noted
"[a]ll [Republic] had to do was to send [Burke] a
letter." When Republic attempted to restate it listed
Shuman as a witness in its pre-trial brief, the trial court
incorrectly stated the pre-trial brief listed him as a fact
Republic proffered Shuman's deposition in which he
testified he reviewed records related to Burke's medical
care following the incident in this case. Shuman asserted
there were "several reasons" Burke could have
fallen and his recovery was "greatly influenced" by
his preexisting medical conditions. Specifically, Shuman
noted Burke's preexisting conditions that could have
caused his fall in the Lot included diabetes,
"significant swelling" in his feet, and a prior
stroke. Shuman also claimed "the extent of [Burke's]
injuries may not be as great as were initially stated"
by Burke's physician. Testifying specifically about
Burke's records, Shuman claimed some of the records
indicated Burke's knee injury was a chronic problem in
existence prior to his fall in the Lot. The jury returned a
verdict in Burke's favor, and the trial court denied
Republic's post-trial motion for JNOV or a new trial.
This appeal followed.
trial court abuse its discretion by excluding Shuman's
testimony based on Republic's failure to timely identify
Shuman as an expert witness?