Yale University School of Medicine v. McCarthy, 9838

• Court: Appellate Court of Connecticut
• Citation: 26 Conn.App. 497,602 A.2d 1040
• Decision Date: 04 February 1992
• Docket Number: No. 9838,9838
• Parties: YALE UNIVERSITY SCHOOL OF MEDICINE v. Frank McCARTHY.

Page 1040

602 A.2d 1040 26 Conn.App. 497 YALE UNIVERSITY SCHOOL OF MEDICINE
v.
Frank McCARTHY. No. 9838. Appellate Court of Connecticut. Argued Oct. 29, 1991.
Decided Feb. 4, 1992.

Page 1041

David M. Stanwicks, New Haven, for appellee (plaintiff).

Tara B. Chiarelli, with whom, on the brief, was Joseph Chiarelli, Hamden, for appellant (defendant).

Before DALY, FOTI and HEIMAN, JJ.

[26 Conn.App. 498] FOTI, Judge.

This appeal arises out of the plaintiff's action to recover payment for medical services provided to the defendant. The defendant appeals from a directed verdict and a jury award in favor of the plaintiff in the amount of $3514.60, and from the trial court's dismissal of his counterclaim. The defendant claims that the trial court improperly (1) granted the plaintiff's motion to preclude the defendant's introduction of expert testimony pursuant to Practice Book § 220(D) due to the defendant's failure to identify his experts prior to trial, and (2) dismissed the defendant's counterclaim sua sponte. We affirm the judgment of the trial court with respect to the defendant's first claim but reverse the court's dismissal of the defendant's counterclaim.

The relevant facts are as follows. The Office of Professional Services of the Yale University School of Medicine filed an action against the defendant in December, 1985, to recover money allegedly owed for medical treatment provided by the plaintiff. In his answer, the defendant asserted seven special defenses and a counterclaim alleging medical malpractice. The defendant failed to file with his counterclaim a certificate of good faith as required by General Statutes § 52-190a. ¹

Page 1042

The plaintiff served the defendant with interrogatories on February 15, 1989. One interrogatory requested disclosure of any expert witnesses who would testify [26 Conn.App. 499] at trial. The defendant objected to this interrogatory. The trial court overruled the defendant's objection and ordered the defendant to respond by August 18, 1989. The defendant failed to inform the plaintiff of the existence or identity of any expert witnesses and the court granted the plaintiff's motion to preclude the defendant from introducing any expert testimony on his counterclaim at trial pursuant to Practice Book § 220(D). ² The court subsequently denied the defendant's motion to set aside this sanction. Additionally, the court dismissed the defendant's counterclaim sua sponte for failure to file a good faith certificate pursuant to General Statutes § 52-190a.

I

The defendant first claims that the trial court abused its discretion in granting the plaintiff's motion to preclude the introduction of expert testimony. The defendant argues that Practice Book § 220(D) does not provide for exclusion of expert testimony if the contemplated expert is an agent of the opposing party. He maintains that neither prejudice nor unfair surprise can result from a failure to disclose the existence of an expert witness if the expert is the opposing party's own employee. The defendant asserts that because he planned to call the operating surgeon and other treating physicians employed by the plaintiff, Practice Book § 220(D) does not apply to this case. We do not agree.

Practice Book § 220(A) provides that "[a] party may through interrogatories require any other party to identify[26 Conn.App. 500] each person whom the other party expects to call as an expert witness at trial...." It is within the trial court's discretion to impose sanctions on a party that has failed to answer interrogatories requesting disclosure of any expert witnesses the party plans to call. Practice Book § 231. These sanctions may include exclusion of expert testimony at trial. Practice Book § 231; Mulrooney v. Wambolt, 215 Conn. 211, 219, 575 A.2d 996 (1990); Pool v. Bell, 209 Conn. 536, 540-42, 551 A.2d 1254 (1989); Perez v. Mount Sinai Hospital, 7 Conn.App. 514, 518, 509 A.2d 552 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 106-107, 476 A.2d 1074 (1984).

The defendant attempts to distinguish an independently retained expert from an expert who is an agent or employee of the opposing party, such as a treating physician. In Perez v. Mount Sinai Hospital, supra, 7 Conn.App. at 517, 509 A.2d 552, the plaintiff similarly tried to draw a distinction between an...