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2005-UP-425 - Reid v. Maytag

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Kevin Reid and Rebecca Reid,        Respondents,

v.

Maytag Corporation and Lynch Appliance Center, Inc., Defendants, of whom Maytag Corporation is,        Appellant.


Appeal From Greenville County
Edward W. Miller, Circuit Court Judge
J. Mark Hayes, II, Circuit Court Judge


Unpublished Opinion No. 2005-UP-425
Heard June 7, 2005 – Filed June 30, 2005


AFFIRMED


William S. Brown and Elizabeth M. McMillan, both of Greenville, for Appellant.

Perry D. Boulier and William B. Darwin, Jr., both of Spartanburg, for Respondent.

PER CURIAM:  Kevin and Rebecca Reid recovered a jury verdict against Maytag Corporation in a products liability action involving a dryer.  Their complaint alleged a design or manufacturing defect in the dryer caused a fire that destroyed their home.  Maytag appeals, primarily focusing its arguments upon the trial court’s rulings regarding two non-testifying, informally consulted experts.  We affirm.    

1.       We find no error in the trial court’s prohibiting Maytag from discovering information possessed and opinions held by two employees of the Warren Group whom the Reids consulted informally about the cause of the fire.  Rule 26(b)(4)(A), SCRCP, permits discovery of facts known and opinions held by experts; however, Rule 26(b)(4)(B), SCRCP, does not require a party to disclose or produce an expert whom the party merely consulted on an informal basis.[1]  An affidavit submitted by Jerry Tindal of the Warren Group shows the Reids only consulted the Warren Group informally about the cause of the fire.  Maytag, though it disputes this, offered no evidence to the contrary.  Because the evidence supports the trial court’s finding that the Reids only informally consulted the Warren Group about the cause of the fire, the trial court did not abuse its discretion in not allowing Maytag to discover information held by the Warren Group.  See  Dunn v. Dunn, 298 S.C. 499, 502, 381 S.E.2d 734, 735 (1989) (“A trial court judge’s rulings on discovery matters will not be disturbed on appeal absent a clear abuse of discretion.” (citing Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct. App. 1984))).[2]

2.       We find no error in the trial court’s prohibiting Maytag from cross-examining the Reids’ expert Jerry Byers regarding the inspection of the dryer conducted by the Reids’ informally consulted experts, Jerry Tindal and Jeffery Warren of the Warren Group.  Byers, who issued a report before the Warren Group conducted any investigation, did not rely on any findings made by Warren Group experts in forming his opinion regarding the origins of the fire that destroyed the Reids’ home.  While, as Maytag correctly points out, Rule 705, SCRE,[3] allows a party to cross-examine an opposing party’s expert as to the facts or data underlying the expert’s opinion, the question of whether to permit inquiry on cross-examination into such facts or data, however, remains subject to the rule that the admission of evidence and the scope of cross-examination rest within the discretion of the trial judge, whose exercise of discretion will not be disturbed on appeal absent an abuse of that discretion.  State v. Slocumb, 336 S.C. 619, 626-27, 521 S.E.2d 507, 511 (Ct. App. 1999).  No abuse of discretion occurred here, particularly since the record shows the conclusions formed by the experts in question formed no part of the “underlying facts or data” that supported Byers’ opinion.[4]    

3.       The trial court committed no reversible error in failing to allow Maytag to call the two experts whom the Reids informally consulted to testify as to the cause of the fire and the condition of the dryer because, even assuming this was error, Maytag suffered no prejudice.  See, e.g., Fields v. Reg’l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005) (“To warrant reversal based on the admission or exclusion of evidence, the appellant must prove both the error of the ruling and the resulting prejudice, i.e., that there is a reasonable probability the jury’s verdict was influenced by the challenged evidence or the lack thereof.”); Fishburne v. Short, 268 S.C. 546, 550, 235 S.E.2d 118, 120 (1977) (holding an error without prejudice does not warrant reversal).  Maytag offered four witnesses of its own who testified about the cause of the fire and the condition of the dryer.  Any additional testimony would have been merely cumulative.  See Fields, 363 S.C. at 31, 609 S.E.2d at 512 (“When evidence is erroneously excluded by the trial court, the appellate court usually engages in the following analysis to determine whether prejudice has occurred.  First, the court considers, inter alia, whether the error may be deemed harmless because equivalent or cumulative evidence or testimony was offered . . . .”). 

4.       The trial court committed no abuse of discretion in allowing the Reids to present evidence regarding the condition of the dryer at trial without requiring them to establish a chain of custody and committed no error in declining to instruct the jury regarding chain of custody because the evidence at issue, the dryer, is a non-fungible item.  State v. Glenn, 328 S.C. 300, 305, 492 S.E.2d 393, 395 (Ct. App. 1997) (stating a strict chain of custody is not required where the proffered item is non-fungible).

5.       The trial court committed no abuse of discretion in restricting Maytag’s cross-examination of the Reids’ testifying expert, Jerry Byers, concerning potential bias due to his work on subrogation issues for insurance companies such as State Farm, the carrier that insured the Reids’ home, because of the potential prejudice that the Reids might suffer if the jury knew they carried insurance.  See Yoho v. Thompson,  345 S.C. 361, 365, 548 S.E.2d 584, 585 (2001) (holding, absent a manifest abuse of discretion, an appellate court will not disturb a trial court’s ruling concerning the scope of cross-examination of a witness to test credibility, or to show bias or self-interest in testifying); id. at 366, 548 S.E.2d at 586 (requiring a trial court to apply a “substantial connection” analysis when “determin[ing] whether an expert’s connection to a [party’s] insurer is sufficiently probative to outweigh the prejudice to the [party] resulting from the jury’s knowledge that the [party] carrie[d] liability insurance”). 

AFFIRMED.

GOOLSBY, HUFF, and KITTREDGE, JJ., concur.


[1]  Rules 26(b)(4)(A) and (B) state:

(4)(A) Trial Preparation:  Experts.  Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained by any discovery method subject to subdivisions (b)(4)(B) and (C) of this rule, concerning fees and expenses.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. A party is not required to disclose nor produce an expert who was only consulted informally, or consulted and not retained or specially employed.

[2]  We do not ignore Maytag’s argument that the Reids waived any protection that could have been afforded the Warren Group documents or opinions because the Warren Group disclosed the information to Byers, a testifying expert.  This issue was not properly preserved for appellate review.  See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (stating where the trial court does not explicitly rule on an issue a party must make a Rule 59(e) motion to alter or amend the judgment to address the issue in order to preserve any alleged error for appeal).

[3]  Rule 705, SCRE, provides as follows:

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise.  The expert may in any event be required to disclose the underlying facts or data on cross-examination. 

[4]  Had the trial court determined Rule 705, SCRE, allowed Maytag to cross-examine Byers as to the information developed by the Warren Group experts, who indicated they saw no physical evidence of any defective condition in the dryer that might have caused it to catch fire, the trial court, in the exercise of its discretion, could still have excluded that evidence under Rule 403, SCRE, using a balancing test.  State v. Slocumb, 336 S.C. 619, 627-28, 521 S.E.2d 507, 511-12 (Ct. App. 1999) (stating the determination of whether an expert may testify to the facts underlying an opinion must include an analysis under Rule 403, SCRE); see Rule 403, SCRE (providing testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence).