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Burke v. Republic Parking System, Inc.

Court of Appeals of South Carolina

October 25, 2017

Robert J. Burke, Respondent,
v.
Republic Parking System, Inc., Appellant. Appellate Case No. 2015-000269

          Heard June 6, 2017

         Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge

          Roopal 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.

          THOMAS, J.

         Appellant 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.

         FACTS/PROCEDURAL HISTORY

         In his 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.

         Burke 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.[1] 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 his deposition.

         The 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 witness.

         Subsequently, 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.

         ISSUE ON APPEAL

         Did the trial court abuse its discretion by excluding Shuman's testimony based on Republic's failure to timely identify Shuman as an expert witness?

         STANDARD ...


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