PARIAN v. MELANSON, No. X04 CV 05 5000481 S (Jun. 1, 2007)

ROBERT E. BEACH, JUDGE.

This case has a tortuous history. Reference is made to this court's ruling dated March 16, 2007, in which I chronicled some of the events. The plaintiffs are proceeding pro se, after the court allowed their attorney to withdraw. It is very difficult for a layperson to conduct a dental malpractice case, and the court has tried to extend every courtesy to the plaintiffs. Represented litigants, however, also have rights.

The gravamen of the situation is that the court, by agreement of the parties at the time, on July 11, 2006, almost a year ago, set a deadline of October 31, 2006, by which the plaintiff was to disclose expert opinion. At the request of the plaintiff's attorney, who indicated he was communicating with an expert, the deadline was extended to November 15, 2006. On October 27, 2006, the plaintiff's attorney moved to withdraw from the case. The court granted the motion to withdraw on November 15, 2006, and affirmed the ruling on January 11, 2007, at which time the plaintiffs appeared in court and agreed to counsel's withdrawal. The court allowed the plaintiffs two months to obtain new counsel. In November 2006, the pro se plaintiffs requested more time to procure expert testimony; the defendant objected.

Another hearing was held on March 15, 2007. Both sides attended. The plaintiffs still had not hired an attorney, and it seemed unlikely that an attorney would be filing an appearance. At the hearing, the plaintiffs quite candidly admitted that it was unlikely that they would he able to procure an expert opinion to the effect that any negligence on the part of Dr. Melanson more likely than not caused the later infection. The defendant has consistently maintained that the case should be dismissed for failure to provide an opinion conforming to Practice Book § 13-4 and has objected to the series of motions for extension of time. In order to be sure that proceedings were fair, and to comply with the requirements of cases such as Millbrook Owners Ass'n. v. Hamilton Standard, 257 Conn. 1 (2001), I concluded in a decision CT Page 7984 dated March 16, 2007, that the motion for extension of time in which to disclose was granted until May 30, 2007. I stated I was "granting the motion with the clear understanding that the action will be dismissed if a sufficient disclosure, satisfying the requirements of § 13-4 of the Practice Book, as interpreted by case law, is not provided by May 30, 2007."

The plaintiff filed on May 21, 2007, a motion for extension of time, dated May 30, 2007. The motion requests time to disclose expert opinion for the state and federal governments to complete their investigations (of this 2003 incident). The defendant objected and requested that the action be dismissed pursuant to the court's prior order. The plaintiff filed further paperwork on May 29, 2007, dated May 30, 2007, entitled "Disclosure of Medical Expert." This document consists of the plaintiffs' representation that they have asked a Dr. Kaplan, director of the Midstate Medical Center, a number of questions and their request that the court allow the plaintiffs' "letter to Dr. Kaplan to be used as my `medical expert.'"

Enclosed in the documentation provided to the court, but apparently not to the defendant, is a series of questions sent by the plaintiffs to Dr. Kaplan dated December 22, 2006, and his responses dated January 5, 2007. Perhaps critically, question 4 asks, "Back in June 2003 I had a tooth extraction — do you think this could be related to my illness and if so how?" Dr. Kaplan's response to the question was, "It is quite possible for a dental extraction or the dental problems which led to the need for extraction, to lead to infection. However, the four month asymptomatic interval between the dental work in June and the fever in October, in my opinion, makes that association unlikely. I am, however, not an expert in the area." (Emphasis added). In the remainder of the letter, Dr. Kaplan repeatedly emphasizes that he lacks expertise in particular areas of inquiry and that he cannot offer opinions without reference to the facts in the plaintiffs' case.

The only possible conclusion is that the response is not at all in compliance with § 13-4 of the Practice Book, which requires a party to identify the expert, to state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. In the context of this case, such opinions would be required on the standard of care applicable to Dr. Melanson at the time, Dr. Melanson's deviation from the standard of care, and the causal relationship between deviation and claimed injury. The documentation submitted does not at all comply with the requirements of the Practice Book. As to the substance of Dr. Kaplan's letter, it, if anything, would CT Page 7985 tend to bolster the defendant's position, at least regarding causation.

The plaintiffs, then, have not complied with the court's unequivocal order to provide expert disclosure compliant with § 13-4 by May 30, 2007. The court's prior order stated that the case would be dismissed if such disclosure were not made. Though such an order may perhaps be overly draconian in many circumstances, in the context of this professional negligence case such an order makes sense, because without expert testimony there is no case.

In the circumstances of this case, an order of dismissal is also unlikely to cause an unjust result. Causation problems apparently were glaring from the outset. Counsel withdrew when he was to have provided expert opinion. The plaintiffs stated that it would be difficult to come up with such testimony. And despite the generous allowances of time to procure both counsel and expert opinion, no satisfactory progress has been made. The defendant has been under the cloud of a lawsuit for almost two years without evidence of causation having been provided. There is no unfairness in the action being dismissed.

So ordered.

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