Gallucci v. Humbryd, 96-84-A

• Decision Date: 28 April 1998
• Docket Number: No. 96-84-A,96-84-A
• Citation: 709 A.2d 1059
• Parties: Carmine GALLUCCI et al. v. Danny HUMBYRD, M.D., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1059

709 A.2d 1059

Carmine GALLUCCI et al. v. Danny HUMBYRD, M.D., et al.

No. 96-84-Appeal.

Supreme Court of Rhode Island.

April 28, 1998.

Paul S. Cantor, Providence, for Plaintiffs.

Thomas C. Angelone, Jessica L. Papazian-Ross, John A. Baglini, Ruth DiMeglio, William A. Dickie, James A. Currier, Providence, for Defendants.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

LEDERBERG, Justice.

Was the testimony of an expert witness erroneously excluded in this medical malpractice case? The trial justice barred certain expert testimony proffered by the plaintiffs, Carmine and Patricia Gallucci, then directed verdicts ¹ and entered final judgments in favor of the defendants, Danny Humbyrd, M.D.; Stephen Lucci; Michael J. Infantolino, M.D., d.b.a. Gate Physical Therapy, Sports Medicine and Rehabilitation and Gate Orthopedics. The plaintiffs, who alleged negligent postoperative physical therapy, have appealed those judgments to this Court. For the following reasons, we answer the question in the affirmative and hold that the trial justice erred in excluding the expert testimony, and we reverse the judgments of the Superior Court.

Facts and Procedural History

During the summer of 1990, Carmine Gallucci (Gallucci) developed a problem with his right arm for which he consulted defendant Danny Humbyrd (Humbyrd), a medical doctor. Humbyrd diagnosed the problem as a ruptured biceps tendon and advised Gallucci that the injury could be surgically repaired. Gallucci elected to have the surgery, which was performed on September 18, 1990.

While Humbyrd was performing the operation to repair the ruptured biceps tendon, he observed that Gallucci's right rotator cuff was torn. ² Determining that this problem also required surgical attention, Humbyrd performed that repair along with the repair of the biceps tendon. Both procedures were completed successfully, and Gallucci afterward had no complaints about the surgery itself.

Gallucci saw Humbyrd for a postoperative followup visit on October 3, 1990, at which time Humbyrd prescribed physical therapy to assist in the rehabilitation of Gallucci's arm and shoulder. The next day, Gallucci began a course of therapy at Gate Physical Therapy (Gate), a facility whose offices were housed in the same building as Humbyrd's practice. Stephen Lucci (Lucci), a licensed physical therapist at Gate, was in charge of Gallucci's care.

Humbyrd's written prescription for physical therapy stated that Gallucci was to start with pendulum exercises for one week and then begin "gentle rom [range of motion]" exercises the following week. Gallucci began his therapy at Gate on October 4 and attended additional sessions on October 10, 12, 17 and 19. He failed to show up for a scheduled session on October 22, 1990.

On October 25, Gallucci returned to Humbyrd, complaining of weakness in his arm. Humbyrd's notes from that visit, admitted as evidence at the trial, read as follows:

"Carmine is now having weakness with abduction. He has some atrophy of the deltoid and of the supraspinatus. He has minimal pain, so overall his function is better than it was before, but he is quite concerned about the weakness as I am. At this point, I think that we have no choice but to observe and see him back in four weeks. Continue with therapy. If things do not improve will have to discuss re-exploration on this gentleman. He does not recall any one episode where he suddenly felt his shoulder give way, but I have to be concerned that his rotator cuff has been torn because of this gentleman's aggressive activity level."

On October 29, October 31, and November 2, 1990, Gallucci received physical therapy from Marybeth McGovern (McGovern), a physical therapy assistant at Gate. Lucci, who had anticipated being out of town to attend a professional seminar, had provided McGovern with directions for Gallucci's care. Gallucci used several new machines for the first time on October 31, including the seated row machine and the chest press.

Gallucci testified at trial that he felt a very sharp pain in his shoulder during the October 31 session while working on a chest press and that he was unable to complete the scheduled exercises on the machine. According to his testimony, Gallucci informed McGovern that he could not do any more exercises because of the pain, but he resumed when she called him a "big baby" and told him to continue using the machine. He claimed that he had to stop again shortly thereafter, at which point McGovern finally examined his shoulder. Gallucci asserted that McGovern consulted at that point with Barbara Wendell (Wendell), who was the supervising physical therapist at Gate. According to Gallucci, Wendell told him to "stop everything right there" and directed him to see his doctor. ³

The testimony of the Gate physical therapists contradicted that of Gallucci. According to McGovern, Gallucci had no problems during his October 31 session and in fact asked McGovern if he could do additional strength-training exercises on the seated row machine after completing the sets that McGovern had instructed him to perform. McGovern testified that she did not allow Gallucci to perform more exercises because she felt he had already done enough for that day. According to McGovern, Gallucci first expressed a complaint on November 2, when he arrived for his therapy session complaining about the appearance of his shoulder. McGovern looked at Gallucci's shoulder and observed that it was "slightly dropped;" she testified that she then consulted Wendell. According to McGovern and Wendell, the therapy given to Gallucci on November 2 included only a hotpack and some isometric exercises. Both therapists denied that Gallucci had been permitted to perform any other exercises after having complained about his shoulder, and both insisted that they advised him at that time to make another appointment with Humbyrd.

A subsequent arthrogram of Gallucci's shoulder showed that the rotator cuff had been retorn. Remedial surgery was performed on Gallucci's shoulder at Massachusetts General Hospital on September 18, 1991, but he did not regain full use of his arm.

On August 26, 1991, Gallucci and his wife, Patricia, filed a complaint in Kent County Superior Court alleging that Humbyrd had failed to provide proper followup care after having operated on Gallucci's shoulder and that Lucci and Gate negligently treated Gallucci during his postoperative physical therapy. The plaintiffs' claims were tried before a jury in Superior Court in June 1995.

At trial, plaintiffs called Barry Lang, M.D. (Lang), an orthopedic surgeon practicing in New Bedford, Massachusetts, as an expert witness. Despite persistent efforts on the part of plaintiffs' attorneys, Lang was never permitted to give a full opinion to the jury on the appropriate standard of care or the causation of Gallucci's injuries. Primarily on grounds of form and foundation, the trial justice sustained numerous defense objections to questions that plaintiffs' attorneys addressed to Lang; Lang's answers to other questions were stricken on similar grounds. Because of the dearth of remaining expert testimony, the trial justice granted defendants' motions for directed verdicts after plaintiffs rested. This appeal followed.

Standard of Review

The standard of review on a motion for a directed verdict is well settled. Without weighing the evidence or evaluating the credibility of witnesses, the trial justice must consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. Hoffman v. McLaughlin Corp., 675 A.2d 404, 405 (R.I.1996). "If, after such a review, there remain factual issues upon which reasonable persons might draw different conclusions, the motion for a directed verdict must be denied, and the issues must be submitted to the jury for determination." DeChristofaro v. Machala, 685 A.2d 258, 262 (R.I.1996). This Court applies the same standards as the trial court when reviewing the decision of a trial justice on a motion for a directed verdict. Id.

Testimony of Lang

Lang is a board-certified orthopedic surgeon who was called by plaintiffs as an expert witness. The first portions of Lang's testimony were presented in the courtroom before the jury, but owing to problems in accommodating Lang's schedule, the final portion of his testimony was taken by videotaped deposition. Because defendants prevailed on a number of objections and motions to strike segments of the videotaped testimony, significant parts of Lang's testimony were redacted from the videotape and never presented to the jury. The plaintiffs argued on appeal that the substance of this excluded testimony was, when taken as a whole, probative and admissible and that its exclusion was wrong and unfairly prejudicial to their case.

1. Foundation for Lang's Testimony

Rule 705 of the Rhode Island Rules of Evidence provides that "[u]nless the court directs otherwise, before testifying in terms of opinion, an expert witness shall be first examined concerning the facts or data upon which the opinion is based." As the Advisory Committee's Note to Rule 705 acknowledges, this Rhode Island rule departs from the federal approach, which permits an expert to give an opinion without first disclosing the underlying facts or data upon which that opinion is based. This Court's directive that "an expert's opinion must be predicated upon facts legally sufficient to form a basis for his [or her] conclusion," Alterio v. Biltmore Construction Corp., 119 R.I. 307, 312, 377 A.2d 237, 240 (1977), was thus preserved with the adoption of the Rules in 1987. See Gorham v. Public Building Authority of Providence, 612 A.2d 708, 717 (R.I.1992) (acknowledging continuing authority of Alterio standard).

In the case before us, Lang testified that he had reviewed the records of Humbyrd and Lucci, the depositions of Humbyrd and Wendell, the...