88 Conn. App. 347 | Conn. App. Ct. | 2005
Opinion
Norma Vitone, the plaintiff in this wrongful death action, appeals from the judgment of the trial court rendering summary judgment in favor of the defendants Waterbury Hospital and Waterbury Hospital Geropsychology Center.
The following facts and procedural history are relevant to the disposition of the appeal. The plaintiff filed this action on April 30, 1997, following the death of her decedent, John Vitone, in December, 1995. In her sixth revised complaint, she alleged that his suicide on the premises of Waterbury Hospital was caused by the carelessness or negligence of the Waterbury Hospital defendants through their failure to conform to the applicable standard of care in several specified ways.
On June 16,1997, the Waterbury Hospital defendants served interrogatories and requests for production on the plaintiff, and on August 13, 1998, the plaintiff provided responses thereto. The responses indicated that the plaintiff had retained an expert, Walter A. Borden, a psychiatrist, in connection with the action; that Borden’s specialties were psychiatry, neurology and forensic psychiatry; and that he was a diplomat of the American Board of Psychiatry and Neurology and of the American Board of Forensic Psychiatry. As to a question that asked the plaintiff to identify each expert witness she expected to testify at trial and to set forth the subject matter on which the expert was expected to testify, the substance of the facts and opinions to which the expert was expected to testify and a summary of the grounds for each opinion, the plaintiff provided no response whatsoever. The Waterbury Hospital defendants assert that the plaintiff never supplemented her August 13, 1998 responses, and the plaintiff does not contest that assertion.
On September 8, 2000, two defendant physicians, Robert Behrends and Arvind D. Shah,
On February 20, 2001, the court granted the motion for more specific disclosure. In its order, the court stated: “Plaintiffs disclosure [is] to be in compliance with Practice Book § 13-4 (4). Failure to be in compliance will result in sanctions at time of trial.” On October 1, 2002, a pretrial was held at which the defendants’ counsel alerted the court that the plaintiff had not yet
On February 19, 2003, the plaintiff withdrew her claims against Behrends and Shah.
On May 6, 2003, the Waterbuiy Hospital defendants filed a motion for permission to file a motion for summary judgment, claiming that because the plaintiff was precluded from calling Borden as an expert witness at trial, she would be unable to meet her burden of proof.
We begin with the applicable law and accompanying standards of review. “Three requirements must be met for a trial court’s order of sanctions for a violation of a discovery order to withstand scrutiny. ‘First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.’ ” Menna v. Jaiman, 80 Conn. App. 131, 135, 832 A.2d 1219 (2003), quoting Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).
Next, the record establishes that both of the court’s orders were violated. The plaintiffs answers to the interrogatories filed by the defendants were glaringly incomplete, and her response to Behrens and Shah included only slightly more detail. The plaintiff did not supplement her responses to Behrens and Shah to bring them into compliance with Practice Book § 13-4 (4), as required by the court’s order for more specific disclosure, nor did she produce by November 1, 2002, any further information regarding expert witnesses, as required by the court’s later scheduling order. Pursuant
The plaintiff argues, however, that she did not need to comply with the court’s orders because the concern they were intended to address was that the plaintiffs initial disclosure had failed to articulate which allegations were directed against each defendant physician. According to the plaintiff, by the time the Waterbury Hospital defendants filed a motion to preclude her from presenting expert testimony, those defendant physicians no longer were parties to the case. She claims that at that point, because “[tjhere was but one defendant left in the case,” the need to clarify the initial disclosure no longer existed. We disagree.
We note at the outset that the withdrawal of the action as to Behrends, Boyd and Shah did not occur until two years after the court’s order for more specific disclosure and close to four months after the deadline for disclosure specified in the court’s scheduling order had passed. The plaintiff offered no excuse for her
More importantly, as previously set out, the motion that first prompted the court to order more specific disclosure raised two concerns: that the plaintiffs initial disclosure did not distinguish between defendants, and also that it was too general and failed to identify particularly the subject matter of the planned expert testimony. That the court agreed with the latter concern is evidenced by its order that the plaintiff comply with Practice Book § 13-4 (4), which by its terms requires disclosure of the subject matter of expert testimony, as well as the facts and opinions to be provided therein, and the underlying grounds for those facts and opinions. In contrast, Practice Book § 13-4 (4) does not address explicitly the need to distinguish among defendants against whom expert testimony will be offered. Finally, nothing about either of the court’s orders suggests that they were as limited as the plaintiff now suggests. On the basis of the foregoing, we conclude that the withdrawal of the action as to Behrends, Boyd and Shah did nothing to alleviate the primary deficiency of the plaintiffs initial disclosure, i.e., its overall lack of detail. Accordingly, the court’s finding that its orders had been violated was not clearly erroneous.
Last, we consider whether the court’s order precluding the plaintiff from introducing expert testimony was an abuse of discretion. The rules of practice authorize this sanction for late disclosure of an expert witness on a motion of the opposing party if “the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by
In Pool v. Bell, 209 Conn. 536, 540, 551 A.2d 1254 (1989), a party failed to comply with the trial court’s orders and instead waited until just weeks before trial to disclose an expert witness. Our Supreme Court concluded that the trial court’s decision to preclude the expert’s testimony was an appropriate response to what reasonably could be viewed as an abusive trial tactic. Id., 541. The court reasoned that as “the trial was to begin shortly . . . the [opposing party] would have had little time to discover and investigate properly [the expert’s] opinions.” Id., 541-42; see also Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 547-49, 733 A.2d 197 (1999) (no abuse of discretion where trial court excluded as highly prejudicial expert testimony disclosed less than thirty days before trial was to begin); Pie Plate, Inc. v. Texaco, Inc., 35 Conn. App. 305, 309, 645 A.2d 1044 (noting that plaintiffs tardy disclosure meant either delay in trial or that defendant would be deprived of reasonable time to prepare for expert’s testimony), cert. denied, 231 Conn. 935, 650 A.2d 172 (1994). In Menna and Sullivan, we found that exclusion of expert testimony was a proportionate sanction for violation of the courts’ orders to provide complete disclosures, thus satisfying the third prong of the Millbrook test. See Menna v. Jaiman, supra, 80 Conn. App. 136-37; Sullivan v. Yale-New Haven Hospital, Inc., supra, 64 Conn. App. 759-60.
Guided by the aforementioned case law, we conclude that in this case, preclusion of the plaintiffs expert testimony was a proportionate sanction and well within the court’s discretion. At the time the court granted the motion to preclude, the case had been pending for close
“The discovery rules are designed to facilitate trial proceedings and to make a trial less a game of blind-man’s [buff] and more a fair contest with the basic issues and facts disclosed to the fullest [practicable] extent.” (Internal quotation marks omitted.) Perry v. Hospital of St. Raphael, supra, 17 Conn. App. 123. In reviewing a trial court’s orders enforcing those well intentioned rules, we are mindful that “whether to impose the sanction of excluding the testimony of a party’s expert witness rests within the court’s sound discretion. . . . The action of the trial court is not to be disturbed unless it has abused its broad discretion, and in determining whether there has been such abuse every reasonable presumption should be made in favor of its correctness. “ (Citations omitted.) Pool v. Bell, supra, 209 Conn. 541. “The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented. Never will the case on appeal look as it does to a [trial court] . . . faced with the need to impose reasonable bounds and order on discovery.” (Internal quotation marks omitted.) Mulrooney v. Wambolt, 215 Conn. 211, 222, 575 A.2d 996 (1990).
The judgment is affirmed.
In this opinion the other judges concurred.
Waterbury Hospital and Waterbury Hospital Geropsychology Center are the only defendants that are parties to this appeal. Prior to the court’s rendering of summary judgment in favor of those defendants, the plaintiff withdrew her claims against the defendants American Medical Response of Connecticut, Robert Behrends, Arvind D. Shah and Jeffrey Boyd, and the court granted the defendant Waterbury Convalescent Center’s motion for a judgment of nonsuit on the basis of the plaintiffs failure to provide responses to the center’s request for production. In this opinion, we refer to Waterbury Hospital and Waterbury Hospital Geropsychology Center as the Waterbury Hospital defendants.
The plaintiff subsequently withdrew the action as to Behrends and Shah. See footnote 1.
In that regard, the responses provided to Behrends and Shah included slightly more information than those provided to the Waterbury Hospital defendants. The plaintiff informed Behrends and Shah that she expected to have two expert witnesses testify, Borden and Susan H. Caplet of the state department of public health. She identified “[c]are and treatment given to John Vitone by the Defendants” as the subject matter on which Borden would testily, and “[h]er investigation into violations of Public Health Code by Defendants” as the subject matter on which Caplet would testify. The plaintiff also provided brief, generalized answers to questions regarding the substance of the facts and opinions about which each expert would testify and the grounds for those opinions. For example, the substance of the facts and opinions about which Borden was expected to testify was identified as “[standards of care which the Defendants failed to maintain,” and the grounds for his opinion were stated to be “[mjedical records of John Vitone.”
Also on February 19, 2003, the plaintiff withdrew claims she had asserted against another physician, Jeffrey Boyd. Waterbury Convalescent Center’s motion for a judgment of nonsuit already had been granted on April 1, 2002.
“To prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that
Practice Book § 13-4 (4) requires, essentially, the disclosure of the information requested in the interrogatories the defendants had propounded to the plaintiff: “the name of [each] expert [expected to be called as a witness at trial], the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion . . . .” Practice Book § 13-4 (4). The rule requires disclosure to be made “to all other parties . . . .” Practice Book § 13-4 (4).