156 F.3d 255 (1st Cir. 1998), 97-1976, Klonoski v. Mahlab

Docket Nº97-1976.
Citation156 F.3d 255
Party NameRichard F. KLONOSKI, M.D., et al., Plaintiffs, Appellants, v. Benjamin MAHLAB, M.D., et al., Defendants, Appellees.
Case DateSeptember 23, 1998
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

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156 F.3d 255 (1st Cir. 1998)

Richard F. KLONOSKI, M.D., et al., Plaintiffs, Appellants,


Benjamin MAHLAB, M.D., et al., Defendants, Appellees.

No. 97-1976.

United States Court of Appeals, First Circuit

September 23, 1998

Heard April 6, 1998.

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[Copyrighted Material Omitted]

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Joan A. Lukey, with whom Hale and Dorr LLP, Michael G. Bongiorno, and John T. Gutkoski were on brief for appellants.

Ronald L. Snow, with whom Orr & Reno, P.A., James P. Bassett, and Cordell A. Johnston were on brief for appellees.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

This is an appeal from a jury verdict of no liability in a medical malpractice case. Plaintiff-appellant is Richard K. Klonoski, M.D., who brought suit on his own behalf for loss of consortium, as administrator of the estate of his wife Jolanta, and on behalf of their three children. 1 Defendants-appellees are Benjamin Mahlab, M.D., Mary Hitchcock Memorial Hospital, Inc., and Hitchcock Clinic, Inc.

We address only one of the three issues raised by appellant because it is dispositive. On the thirteenth day of trial during cross-examination of Dr. Klonoski, the last witness in plaintiff's case, defendants disclosed for the first time and used letters written by Mrs. Klonoski to her sister in Poland. Excerpts from the letters were allowed in evidence. Neither Dr. Klonoski nor his attorneys knew of the existence of the letters prior to this time, despite a court order requiring disclosure of such information prior to trial. We find that this constituted trial by ambush. We vacate the judgment below and remand for a new trial.



Jolanta Klonoski and her husband, Dr. Klonoski, were the parents of two children: Brian, born in Poland, and Karina, born in the United States. Dr. Klonoski was born and raised in Connecticut. He received his medical training in Poland where he met and married his wife. After he finished his medical training, he, his wife, and their son, Brian, moved to the United States. Mrs. Klonoski became pregnant with their third child in September or October of 1992. At that time Dr. Klonoski was employed by Mary Hitchcock Memorial Hospital as a cardiologist. On Saturday, May 8, 1993, at approximately 11:15 a.m., Mrs. Klonoski went to the Birthing Pavilion of the Dartmouth-Hitchcock Medical Center because of vaginal spotting. She was sent home in the afternoon. Mrs. Klonoski returned to the Birthing Pavilion that night about 9:00 p.m. complaining of severe epigastric pain. She remained in the hospital until her death on Monday, May 10, of a massive cerebral hemorrhage. Prior to Mrs. Klonoski's death she was delivered of a healthy baby girl, subsequently named Caroline.

Dr. Klonoski was in San Diego at a medical meeting of cardiologists on Saturday, May 8. He was notified late Saturday of his wife's admission to the hospital. He flew home on Sunday, arriving at the hospital late in the day. His wife was comatose and did not recognize him. After conducting his own investigation into the cause of his wife's death, Dr. Klonoski consulted with an obstetrician in Connecticut and then brought suit.


As is usual in a well prepared medical malpractice case, both sides engaged in extensive pretrial discovery and, as is also usual, the parties squabbled about what information should or should not be disclosed. Over a year prior to trial, plaintiff disclosed, as part of the discovery process, the address in Poland where Mrs. Klonoski's father and sister lived, the address to which her letters (the evidence in dispute) were sent.

The district court issued a nineteen-page discovery order on July 19, 1996, covering disputes between the parties. In part of its order, the court stated:

defendants shall produce a list of all persons known by them to possess discoverable information related to: (1) marital discord between Dr. and Mrs. Klonoski;

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and (2) the paternity of Dr. Klonoski's youngest daughter. To the extent defendants can more persuasively support their assertion that such a list (or the names of particular people which would otherwise appear on such a list) is protected by the work product doctrine (i.e., with references to precedent and/or scholarly writings on the subject), they shall provide plaintiffs with a privilege log as contemplated by Fed.R.Civ.P. 26(b)(5) and a list of cases and/or scholarly writings which specifically support their claim of privilege. Plaintiffs will, of course, then be free to file an appropriate motion to compel.

In its conclusion the court ordered:

Defendants shall produce a list of the names of individuals having knowledge of discoverable information relating to the issues of marital discord and paternity and a general description of the nature of that information on or before August 14, 1996. To the extent that defendants are able, in good faith, to legally support an assertion of privilege with regard to some or all of those names, they shall produce a privilege log as described above.

A final pretrial order was issued on December 19, 1996. It provided that a jury would be drawn on January 7, 1997, and the presentation of evidence would commence on January 13. The order noted that both parties had submitted requests for jury instructions. After noting that some motions in limine had been filed, the court gave the parties until December 31, 1996 to file additional motions in limine, with objections to be filed not later than January 10, 1997. Exhibits were to be premarked and submitted, along with any objections, not later than January 7, 1997. Defendants were ordered to "disclose all documents ordered disclosed after close of business on December 27, 1996, forthwith [sic]."

The penultimate paragraph stated in pertinent part:

All counsel and the court anticipate conducting a brief Daubert hearing prior to the testimony of plaintiffs' psychological expert, who is expected to testify as to the loss of enjoyment of life, or hedonic damage, aspect of the estate's wrongful death claim. The court expects that that hearing will be held at some point during the first week of trial as is convenient to counsel, and the parties agree that one hour should be sufficient.

The order also required a "final will-call witness list." The final paragraph exhorted the parties to try to settle the case. It would appear from the order that all discovery had been completed and the case was ready for trial.


We next set forth the pertinent parts of Dr. Klonoski's testimony.

After moving from Poland to the United States, Mrs. Klonoski wrote frequently to her family in Poland and sent packages to them. Her father visited her and Dr. Klonoski, and stayed for six months. She was quite happy when he was there, but felt lonely when he went back to Poland. Dr. Klonoski was working long hours at the hospital in Connecticut where he was training. Consequently, he was not spending much time at home with his family. His wife complained about the long hours he had to spend at the hospital. Mrs. Klonoski was thirty-five years of age. She did not have a driver's license and was "house-bound" with their two small children.

In early 1990 there was a period of stress in the marriage. Dr. and Mrs. Klonoski "had some strong discussions." "[T]here was a lot of stress between us." The problem was that Mrs. Klonoski wanted her husband to spend more time at home with the family. He could not accommodate her because he was in the residency program at the hospital which required that he spend a great deal of time there.

Dr. Klonoski became angry at his wife and filed for divorce. The divorce proceedings remained pending for four or five weeks. The couple did not stop living together during this period. There was more stress in the house, "but everything typically went on." At the end of the five-week period Dr. Klonoski and his wife talked things out and decided that they did not want a divorce, so

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the divorce proceeding was dropped. In May of every year, Dr. Klonoski gave his wife one rose for each year that had passed since their first meeting in Poland. In May of 1990 the doctor followed this ritual.

Things eventually changed "tremendously" for the better. Dr. Klonoski completed his residency program in June of 1990 and he went on to a sub-specialty program. This enabled him to spend more time with his family. Mrs. Klonoski became pregnant in June of 1990.

Dr. Klonoski had been accepted into the cardiology program at the Mary Hitchcock Memorial Hospital and the Hitchcock Clinic in 1989. The family moved to Lebanon, New Hampshire, in June of 1990. Mrs. Klonoski was excited about the move. It was "a new stage in [their] lives." When the Klonoskis relocated to Lebanon, Mrs. Klonoski was pregnant, their oldest child, Brian, was six, and their daughter Karina was three. A short time later, in July 1990, Mrs. Klonoski had a miscarriage. She was treated by doctors at the Dartmouth-Hitchcock Clinic.

Mrs. Klonoski could not reconcile herself to the fact that her husband had to work harder than Polish doctors. She did not like his going to medical conferences because he was away from the family too much. Outside of this, things were "going great" between Dr. Klonoski and his wife. She "blossomed" and became very self-confident and self-reliant. She obtained a driver's license just before she left Connecticut for New Hampshire. This helped a lot because she could go places with the children and do things.

In October of 1990 she obtained a job as a bank teller. She also attended Lebanon College. After she had been there a time, she was offered a position teaching Polish but refused because she did not want to take too much time away from the family. She was devoted to the children.

Mrs. Klonoski became pregnant again in the fall of...

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