Wexler v. DeMaio

• Decision Date: 10 May 2005
• Docket Number: No. 24737.,24737.
• Citation: 871 A.2d 1071,88 Conn.App. 818
• Court: Connecticut Court of Appeals
• Parties: Howard WEXLER et al. v. John T. DeMAIO et al.

871 A.2d 1071

88 Conn.App. 818

Howard WEXLER et al. v. John T. DeMAIO et al.

No. 24737.

Appellate Court of Connecticut.

Argued December 8, 2004.

Decided May 10, 2005.

William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellants (plaintiffs).

Andrew J. O'Keefe, with whom, on the brief, was Joseph M. Busher, Jr., Hartford, for the appellees (named defendant et al.).

Paul T. Nowosadko, with whom, on the brief, was Lorinda S. Coon, Hartford, for the appellee (defendant Lynn K. Davis).

LAVERY, C.J., and DiPENTIMA and McLACHLAN, Js.

DiPENTIMA, J.

In this medical malpractice case, the plaintiffs, Howard Wexler and Judy Wexler, challenge the trial court's preclusion of their proposed expert testimony. The principal issue in this appeal concerns the court's discretion to secure compliance with the disclosure requirements of Practice Book § 13-4(4) and appropriate sanctions for failure to comply. We affirm the judgment of the trial court.

By amended complaint filed August 7, 1998, the plaintiffs brought an action against the defendant physicians John T. DeMaio, John M. DaSilva, Michael J. Tortora and Lynn K. Davis,¹ alleging damages arising from negligent medical treatment provided to Howard Wexler between November, 1994, and January, 1996. The defendants filed interrogatories and requests for production in the spring of 1998, in which they asked the plaintiffs to identify any expert witness to be called at trial, and to disclose the subject matter, facts and opinions on which the expert was expected to testify, and a summary of the grounds for each opinion. The plaintiffs responded in August, 1998, that the expert disclosure would be "supplied in accordance with [§ 13-4] of the Practice Book."

On July 10, 2002, the court issued a scheduling order requiring the plaintiffs to disclose their experts by November 30, 2002. The plaintiffs disclosed no expert. On May 5, 2003, Davis filed a motion for summary judgment, maintaining that because the plaintiffs had failed to disclose an expert witness to testify as to the standard of care, they could not meet their burden of proof in the case. On May 19, 2003, the plaintiffs filed a motion for extension of time until July 2, 2003, in which to disclose their expert witness, alleging that the expert retained prior to the commencement of the action was retired and would not testify. At a June 9, 2003 hearing on the motion, the court ordered the plaintiffs to provide an affidavit no later than June 11, 2003, by Thomas J. Airone, the attorney responsible for the case, stating when the expert was hired, when counsel discovered that the expert would be unable to testify and whether another expert was immediately available. An affidavit was filed on June 10, 2003, by attorney William F. Gallagher, in which he stated that the expert had refused to appear in another case handled by his law firm in the spring of 2002, but that it was not until February or March, 2003, that Airone learned that the expert was unavailable. Gallagher stated in the affidavit that he was uncertain whether another expert was available.

The court issued a memorandum of decision on June 12, 2003, granting the plaintiffs' motion to extend time until noon on June 26, 2003. The court found that although the failure to disclose an expert resulted from the negligence of the plaintiffs' counsel, the defense would not be prejudiced by the late disclosure, provided certain conditions were met. The disclosure was to comply fully with § 13-4(4) and to include the expert's curriculum vitae, a list of all materials and information viewed or considered by the expert and a copy of all such materials not yet disclosed, as well as a list of all cases in which the expert had testified since January, 1999. The plaintiffs were also ordered to make the expert available for a deposition on specific dates during the first two weeks of July and to bear all costs associated with the deposition.

The plaintiffs filed a disclosure of physician Peter H. Wiernik on the morning of June 26, 2003, which stated that he was expected to testify as to the standards of care that the defendants should have observed in treating Howard Wexler, the deviations from those standards of care and the causal relationship between the two. It further stated that Wiernik was expected to testify that DeMaio, DaSilva and Tortora missed and delayed the effective diagnosis of Howard Wexler's condition, that Davis failed to provide proper treatment once the condition was discovered, and that those failings subjected Howard Wexler to an unnecessary and more risky medical procedure, contributing to his current condition. The expert's opinions were based on his training, education, experience and background, on hospital records, office notes and medical records of the defendants, and on the transcripts of the depositions of Howard Wexler and the defendants. Attached to the disclosure was the expert's curriculum vitae.

On July 3, 2003, Davis filed a motion to preclude Wiernik's testimony, maintaining that the plaintiffs' disclosure was vague, lacked sufficient detail and failed to comply with the court's order and § 13-4. Davis claimed, inter alia, that the disclosure was deficient in that it did not state the expert's opinion as to the standard of care, how that standard had been breached, and how the breach affected Howard Wexler's life and health. In addition, the plaintiffs had provided no list of cases in which the expert had testified. The plaintiffs objected to the motion on the grounds that the disclosure complied with the requirements of § 13-4(4) and that their expert had provided a short list of cases in which he had served as an expert witness, none of which had resulted in testimony. Davis responded that he had found at least two cases in which the expert had testified as an expert witness during the relevant period. The other defendants also filed a motion to preclude.

A hearing on Davis' motion to preclude was held on September 4, 2003. The plaintiffs, now represented by Gallagher,² proffered a July 7, 2003 e-mail from the expert that listed three cases in which he had been deposed. The plaintiffs claimed that prior to the disclosure, Wiernik had stated that he had no recollection of any testimony offered since January, 1999, and that it was his understanding that the defendants had been provided a copy of the e-mail. The defendants denied having received the e-mail. The court refused to accept the plaintiffs' claim that they had provided the defendants with all the information they possessed regarding prior testimony by Wiernik without testimony from Airone on the matter. The plaintiffs also stated that the expert had been made available for a deposition on the dates required by the court's order. The court found that the disclosure was inadequate because, in addition to the absence of the ordered list of testimony, no detail was provided with respect to the standard of care and the deviation therefrom.

Nevertheless, the court gave the plaintiffs a third opportunity to comply with the expert disclosure requirements. The court ordered the plaintiffs to provide the defendants with a written report from their expert by September 10, 2003, complying with the minimum requirements of § 13-4(4), which the court proceeded to define in detail. The court also directed the plaintiffs to provide a list of all billings for those cases on which the expert had worked and transcripts of any testimony he had given since January, 1999. It further ordered that Wiernik be available for deposition within two weeks. The plaintiffs stated that it would be difficult to comply within the time frame ordered, that supplying the transcripts would be impossible and that although that kind of disclosure was standard practice in the federal courts, it was not provided for by § 13-4. The court responded that it had ordered transcripts to be supplied several months ago and that it was "giving [the plaintiffs] the opportunity to have what amounts to a thirteenth hour compliance."

The plaintiffs filed a supplemental disclosure of their expert on September 25, 2003, which provided more detail as to the expert's expected testimony, but no written report, billing list or transcripts of prior testimony. At a hearing on September 29, 2003, the plaintiffs admitted that they had not complied with the court's order of September 4, 2003. The defendants renewed their motions to preclude and, based thereon, their motions for summary judgment.³ The plaintiffs acknowledged that were the court to grant the motions to preclude, they could not meet their burden of proof in the case and that summary judgment in favor of the defendants would necessarily follow. The court noted that without the plaintiffs' expert disclosure, the defendants could not adequately prepare for trial. The court thereafter granted the defendants' motions to preclude and their motions for summary judgment. This appeal followed.

The plaintiffs claim that the court improperly precluded their expert's testimony. In particular, they claim that (1) the court's articulation on September 4, 2003, of its June 12, 2003 order was not reasonably clear and that their disclosure on June 25, 2003, complied with the reasonable meaning of the court's June 12, 2003 order, and (2) the court abused its discretion by requiring that the plaintiffs' disclosure of their expert witness meet the federal standard for disclosure of expert witnesses. We disagree.

I

The plaintiffs maintain that the court's statements during the hearing on September 4, 2003, were, in effect, an articulation of its June 12, 2003 order. They argue that the June 12 order directing disclosure in compliance with § 13-4(4)⁴ was reasonably clear until the court articulated on September 4, 2003, that it had intended the disclosure to be a detailed, written medical report. The plaintiffs claim that by ordering the medical report, the court...