ASTHANA v. SHIMKIN, No. X05 CV065002682S (May 3, 2010)

BLAWIE, J.

This is a medical malpractice wrongful death case brought by the family of a man against a Connecticut radiologist and his group practice. It is a case in which jury selection is currently scheduled to commence on August 31, 2010, followed by trial. On February 5, 2010, the plaintiff filed a Motion for Permission to Disclose Experts (#459), which was objected to by the defendants. This court denied the plaintiff's motion on March 18, 2010, thereby sustaining the defendants' objection. The plaintiff moved for reargument, which was also objected to by the defendants. The ruling of March 18th denying the plaintiff's motion to disclose experts was issued by the court without articulation. The plaintiff's Motion for Reargument further adds, "To the extent that the Court's denial was based on a concern that additional expert disclosure could not be completed by the current trial date, plaintiff respectfully moves the Court for a continuance of the trial date." In the alternative, the plaintiff asks for an articulation of the court's denial.

The plaintiff argued that the court misapplied Connecticut law by imposing the sanction of expert preclusion, and asked the court to reconsider the matter. The Motion for Reargument was granted, and a hearing was held on April 26, 2010. For the reasons specified herein, the court vacates its prior order, overrules the defendants' objection, and hereby grants the plaintiff's Motion for Permission to Disclose Experts.

I

"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of the facts . . . It also may be used to address CT Page 9884 alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument . . . [T]he . . . [court] is not precluded from reexamining its own decisions, within a reasonable time after their rendition, if it appears that otherwise injustice may result because of oversight in a material issue of fact or law . . . [Practice Book § 11-12(c) provides] [t]he motion to reargue shall be considered by the judge who rendered the decision or order. Such judge shall decide, without a hearing, whether the motion to reargue should be granted. If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested." (Citations omitted; internal quotation marks omitted.) Silverstein v. Camposeo, Superior Court, judicial district of Tolland, Docket No. CV 05 4002560 (August 6, 2008, Vacchelli, J.).

II

This is a medical malpractice wrongful death action in which the plaintiff has alleged that the defendant radiologist Dr. Peter Shimkin failed to properly interpret an MRI radiological study of the plaintiff's decedent, Sharad Asthana. The plaintiff's theory of the case is that this alleged act of negligence delayed the timely diagnosis and treatment of a tumor (sarcoma) located in Sharad Asthana's back. Left untreated, it resulted in medical complications leading to his death. The plaintiff now seeks to disclose two additional experts, Dr. James Johnson, M.D. and Dr. Laurence Baker, M.D. As previously stated, the plaintiff's disclosure was dated February 5, 2010, with jury selection to start almost seven months later on August 31, 2010. The defendants contend that the plaintiff's disclosure of these two new experts is untimely, prejudicial, violates the existing scheduling order, will cause undue interference with the trial date, and require a continuance of the trial. Significantly, at oral argument the defendants disavowed any claim that the plaintiff's disclosure in this instance was done in bad faith.

In response, the plaintiff argues that because her disclosure was made more than six months before the start of trial, there will be no interference with the trial date, that these witnesses are a vital part of her case, that they were disclosed as soon as was practicable, given what the plaintiff recently learned in depositions were the bases of certain defense experts' opinions. The plaintiff argues that the defendants will not be prejudiced, as her experts are offered to rebut certain of those opinions of the defendants' experts, and to testify on CT Page 9885 causation. The plaintiff further argues that these proposed witnesses are such a vital part of her case that a strict adherence to the scheduling order would have a disproportionately severe effect under the circumstances. The plaintiff seeks a continuance of the trial date as an alternative to preclusion.

Since this complaint was filed in 2006, the applicable authority, i.e., the Practice Book, has been amended. However, for purposes of this case initiated in 2006, the operative rule for expert disclosures in this area is found in former Practice Book § 13-4, as it existed prior to those recent amendments. Some recent case law construing that provision is instructive. "The purpose of Practice Book § 13-4(4) is to assist the parties in the preparation of their cases, and to eliminate unfair surprise by furnishing the opposing parties with the essential elements of a party's claim . . . Section 13-4(4) authorizes the court to preclude expert testimony [as a] 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 the disclosing party . . . In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met: First, the order to be complied with must be reasonably clear . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation . . .' (Citations omitted; internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 234-35, 963 A.2d 943 (2009) . . . The propriety of a sanction for a party's violation is addressed to the court's discretion. See id., 235. `[T]he court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.' (Internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006). In addition, the Appellate Court has reiterated that `[i]n order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.' (Internal CT Page 9886 quotation marks omitted.) McVerry v. Charash, 96 Conn.App. 589, 600, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006) . . ." (Citation omitted.) Wegryn v. Smith Nephew, Inc., complex litigation docket at Hartford, Docket No. X04 CV 07 05023921 (November 10, 2009, Shapiro, J.).

In 2001, in a shift away from a broad "abuse of discretion" standard, the Connecticut Supreme Court adopted a new standard of review of a trial court's order of sanctions for violation of a discovery order. In announcing its decision, the court stated, "Upon reflection, we conclude that the broad abuse of discretion standard that we have been employing for the imposition of sanctions for violation of discovery orders, and for our appellate review thereof, is inaccurate, because it masks several different questions that in fact are involved in the question of when a court is justified in imposing such sanctions. We therefore now take the opportunity to clarify that standard by articulating those specific questions. In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met . . .

"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 do 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." Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).

III

A brief review of some of the procedural history of this case is necessary to understand the grounds for this court's decision. This case has seen well over 400 pleadings and/or motions since its inception in 2006. The plaintiff's decedent Sharad Asthana died on June 18, 2007, and the plaintiff advises that there was initially an effort to attempt to bring this matter to trial before Asthana's death. There proved to be CT Page 9887 insufficient time to do so, as Asthana died on the eve of the first anniversary of the return date. Several different case management orders with different scheduled trial dates have been entered since the first case management order in 2006, and disclosure benchmarks have also been revised accordingly. Suffice it to say that at various times over the history of this medical malpractice case in its four years on the docket, the trial date set has dictated events. However, it cannot be ignored that at times, it seems that the course of events has dictated the setting of the trial date. Thankfully, cases of this nature are more the exception than the rule. Moreover, this hard fought case is hardly evidence of the sort of "aimless drifting," which the Appellate Court in McVerry v. Charash, supra, was rightfully critical of. These parties are far from aimless. There is evident purpose behind their respective pre-trial strategies.

In the same vein, in a letter explaining the Emancipation Proclamation issued in the midst of Civil War, Abraham Lincoln once noted, "In telling this tale I attempt no compliment to my own sagacity. I claim not to have controlled events, but confess plainly that events have controlled me. Now, at the end of three years struggle the nation's condition is not what either party, or any man devised, or expected." Letter to A.G. Hodges, Esq., April 4, 1864, Original Manuscript, Library of Congress, www. loc.gov.

By way of her February 2010 disclosure, the plaintiff seeks to disclose Dr. Johnson, an orthopedic surgical oncologist, and Dr. Baker, a medical oncologist. These experts will testify as to causation and also rebut certain opinions of defense medical experts Dr. Mark Bilsky, Dr. David D'Adamo, and Dr. Kenneth Miller. These defense experts were initially disclosed as a group by the defendants on August 31, 2009. This was at a time when this court had set a trial date some four and one-half months later, on January 20, 2010. A word about the August 31, 2009 disclosure as to these doctors. Due to the lack of sufficient detail as to the substance of these experts' opinions in the defendants' initial disclosure, the defendants were ordered to submit amended and supplemented disclosures for each. That was filed on September 29, 2009. Depositions of these experts followed in the final quarter of 2009 and on into 2010, with Dr. Miller's deposition scheduled to take place in May 2010. When it became apparent that all discovery could not be concluded in time to begin voir dire in January 2010, this court on December 11, 2009 rescheduled the trial for August 31, 2010. The court also ordered additional expert disclosures by the parties to be done by way of motion. The plaintiff's motion for permission to disclose Drs. Johnson and Baker in rebuttal followed on February 5, 2010.

By its most basic definition, rebuttal testimony either refutes evidence offered by the defendants, or contradicts such evidence. Shaham v. Capparelli, 23 Conn.App. 468, 472 (1990). The plaintiff claims that her two additional expert witnesses are needed to rebut new issues of causation and Asthana's survivability. These issues were injected into the case by these defense experts, issues which the plaintiff only learned of when it took those experts' depositions over these past few months. The court agrees. The court also disagrees with the defendants' argument that such a ruling allowing the rebuttal will result in starting CT Page 9888 the discovery process `all over again.' Such an argument misconstrues rebuttal evidence. Moreover, that type of exercise will not be countenanced, as it would be neither productive, nor a wise use of scarce judicial resources. It is fundamental that, "[t]o 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 standard." (Internal quotation marks omitted.) Vitone v. Waterbury Hospital, 88 Conn.App. 347, 351-52 n. 4, 869 A.2d 672 (2005).

That the plaintiff's decedent Sharad Asthana was treated by the defendant radiologist Dr. Peter Shimkin in 2003 is not in dispute. Beyond that statement, it would appear that the parties are in current disagreement, and have always disagreed, on almost everything else of substance in this case. Not surprisingly, this disagreement extends even to what is or is not appropriate discovery, and what a written expert disclosure must contain to be sufficient under the Practice Book. This case presents a battle of opposing medical experts in the classic sense. It is a battle joined on both the applicable standards of medical care and treatment, and whether or not there were any breaches of those standards of care. It is a contest over whether or not any of the defendant Dr. Shimkin's actions — or inactions — as a medical professional in any way were the proximate cause of Asthana's demise.

In addition to the defendant's medical specialty of radiology, other practitioners of the healing arts are implicated. This is because the case involves the timely detection and diagnosis of a sarcoma on or near Asthana's spine, disagreements over the exact type of sarcoma (bone v. soft tissue), its operability and staging at different times, and Asthana's prognosis for survival. As to all of these issues, neither side may be heard to complain. They cannot complain that they were not able to present their evidence at trial through expert testimony in a light most favorable to their respective clients, and in support of their competing theories of the case. Ideally, that is what the discovery process is designed to achieve. In any event, it is at least the stated goal of a well-managed process in any litigation, medical malpractice or otherwise. It is what this court strives to bring about, even in cases where it proves problematic.

However, what finally stops the peremptory rejection of these new witnesses is simply this: Doctors and other medical expert witnesses by necessity play a more important role in the trial of these types of cases, not less. There's the rub. "[A] plaintiff must adduce expert CT Page 9889 testimony in support of a complaint sounding in medical malpractice in order to establish a prima facie case. Because of the materiality of such evidence, serious attention must be given to its proper disclosure or preclusion." (Emphasis added.) Giblen v. Ghogawala, 111 Conn.App. 493, 498-99, 959 A.2d 1059 (2008). Giblen involved plaintiff's disclosure of an expert in a medical malpractice case more than seven months before the start of jury selection, but in violation of an existing trial scheduling order. In the absence of a showing of bad faith, the Appellate court reversed the trial court's order precluding the plaintiff's expert, and remanded it for further proceedings.

The "serious attention" lauded by Giblen, and strict adherence to discovery time standards can also be the first casualties of a breakdown in collegiality between the parties, as the process itself comes under strain. Some background on the twists and turns the discovery process has taken here is helpful. Included among the 400+ filings in this case are found the following:

a) Fourteen written motions to compel compliance with discovery;

b) Ten motions for protective orders relative to discovery; and

c) Three motions for sanctions for discovery violations against opposing counsel.

In addition to the undersigned, who assumed responsibility for this case in the fall of 2008, three different Superior court judges have participated in the mediation of other discovery disputes in this case, usually in form of telephone conferences with counsel held in the middle of contentious deposition sessions.

For example, see a prior ruling in this case dated October 5, 2007 on a Motion for a Protective Order (#190). There the court (Adams, J.) stated bluntly, "Counsels' behavior in this case concerning depositions has been poor and is on the verge of becoming notorious."

A party's need for a certain rebuttal expert in any given case may not be apparent until an opposing expert's deposition has been completed, and the subject matter of their anticipated testimony is fully explored at such a deposition. The court finds that the plaintiff's proposed medical experts she now seeks to disclose by motion are not cumulative. They are in fact offered to rebut the testimony of defense experts on certain issues. These are issues the plaintiff only learned about in the several months preceding their motion by taking the depositions of those experts. The issues raised by the defense experts introduced into this case in the last 8 months or so deserve an evaluation.

The court is fully aware that the sanction of preclusion may be CT Page 9890 warranted when expert disclosures will delay and interfere with the orderly progress of a trial. In this particular instance there is no real claim of bad faith being pursued, and the court agrees.

The court further finds that the disclosure of the plaintiff's experts as initially proposed in February 2010, almost seven months before the scheduled start of voir dire, would not have interfered with the trial date. The court therefore concludes that the sanction of preclusion of the plaintiff's experts under the facts as presented here would not be proportionate to any possible violation of a scheduling order, a finding required by Millbrook Owners Assn, Inc., supra. The court concludes that in a case such as this, where the expert disclosure is made under these circumstances over six months in advance of trial, the primary focus of the Practice Book is not on witness preclusion. It is on completing the deposition of that witness within thirty days. Outright preclusion of these experts here is simply too draconian.

CONCLUSION

"[Practice Book rules] will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, not an end in themselves." Millbrook Owners Assn., Inc., supra, 257 Conn. 16. If it is true that the court misapprehended in its initial ruling the significance of the applicability of Practice Book § 13-4 (2006 edition) to the facts and circumstances of this case, and the manner in which that rule is to be interpreted, it is equally true that the plaintiff's arguments in support of their need for additional expert disclosure were also more compelling upon rehearing. The court is mindful of the words of U.S. Supreme Court Justice Robert Jackson, who once noted, "Of course, it is embarrassing to confess a blunder; it may prove more embarrassing to adhere to it." United States v. Bryan, 339 U.S. 323, 346, 70 S.Ct. 724, 94 L.Ed. 884 (1950). It is not embarrassment the court seeks to avoid here, but the working of an injustice against either party, and a desire not to deny either side their day in court. It will not denying them the right to call the experts they believe they need to prove their case, and adapt to new theories of liability and new defenses.

For the foregoing reasons, the plaintiff's motion for permission to disclose Dr. Johnson and Dr. Baker as experts is granted. The defendants' motion to preclude is denied. A status conference in this matter is scheduled for Monday, May 17, 2010 at 10:00 a.m. in Courtroom 7A.

SO ORDERED, CT Page 9891