DRAGAN v. STAMFORD HOSPITAL, No. CV90 011 30 85S (Sep. 2, 2003)

NADEAU, JUDGE.

The above-captioned malpractice suit was tried to completion in 1997. Plaintiff's appeal from a verdict in favor of defendant physicians and hospital was not successful; an appellate court per curiam decision was announced on May 20, 2003. (A subsequent request, dated May 29, 2003, for reconsideration en banc was filed on May 29, 2003, and the appellate court denied that, apparently, under a notice sent July 23, 2003.

It may well be that the instant May 19, 2003 new trial motion by plaintiff-appellant was filed upon plaintiff learning of the appellate court decision to be officially released the next day. In any event, the new trial motion was calendared for a Stamford judge, who ruled on June 4, 2003, that it should, of course, be handled by the trial court, then sitting in Derby. In any event, this court declined to set a hearing or a hearing date until it could further study the new trial motion and briefs.

The court has been studying the material submitted since its arrival and feels it is unnecessary to hold argument or hearing on the issues raised.

Plaintiff's first argument in the motion for a new trial is the only argument defendant hospital claims has not been unsuccessfully raised earlier. The court does not necessarily agree; however, each argument raised by plaintiff will be discussed. The linchpin of this argument is that the single outside defense expert, Dr. George Blackburn, has been recently portrayed, in an October 2002, Reader's Digest article, to be rather an expert on obesity, and thus, plaintiff claims, not the parenteral nutrition maven said to have been put forth at trial.

There are short answers to this claim aside from the obvious potential for a doctor to possess multi-faceted expertise. First, plaintiff did not CT Page 10387 depose nor seek to depose Dr. Blackburn in the pretrial period, during which his career activities were discoverable.

The Reader's Digest article (a so-called "Book Bonus") was based upon a 2002 book, "The Hungry Gene" by Ellen Ruppel Shell. Obviously, this book and condensation were not available prior to the 1997 end of trial. This court, not skilled in computer research, sought the aid of a legal research clerk in order to determine whether Blackburn's prominence in the treatment of obesity was discoverable in the literature of the pre-trial period. The results of that mere one and a half-hour search (attached as Exhibit 1) make it abundantly clear that much of Dr. Blackburn's purported renown was in this area, and prior to the 1997 trial; even if one discounts the "fresh" 2003 computer search the standard approach to medical literature would have netted similar results.

"The standard that governs the granting of a . . . new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial." Terracino v. Fairway Asset Management, Inc., 75 Conn. App. 63, 73 (2003); Ginsberg v. Cadle Co., 61 Conn. App. 388, 392 (2001). Furthermore, our Supreme Court has noted that in order "to entitle a party to a new trial for newly-discovered evidence, it is indispensable that [that party] should have been diligent in his efforts to fully prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted." White v. Avery, 81 Conn. 325, 328 (1908); see also Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 73 (2003); Ginsberg v. Cadle Co., supra, 61 Conn. App. 392 (2001).

Additionally, it seems plaintiff's strategic approach might be read, in part, to choose to portray Dr. Blackburn as one whose specialty was so narrow and obscure that he might be seen to be a captive in a dense forest, heavily invested in the efficacy of 3-1 parental therapy, rather than one able to reach out and fairly piece together a path from illness to treatment to result, open to the possibilities of negligence along the way.

Plaintiff's next argument is that the same expert's purported expertise was portrayed by the defendant hospital "as being backed by the authority of the [Boston] hospital of which he was a full-time employee. . . ." CT Page 10388 (Plaintiff's May 12, 2003 Motion for New Trial, p. 5.)

This notion stems from Dr. Blackburn's testimony that his employer would bill the defendant-litigant of this case for his time and appearance. This court finds no logic or substance to the inference plaintiff thus suggests, i.e., "the jury would logically conclude that his employer hospital, before authorizing [him] to testify for the defendants and thus risking its reputation, must have investigated this case and determined that the defendant's treatment was correct and the plaintiff's claims were wrong." ( Id. at p. 6.) For example, plaintiff has not suggested whose concurrence at the Boston hospital would lend weight or how and when it would have been obtained or expressed. This is a real stretch of course and not one the plaintiff has shown the defendants to have attempted. One must weigh whether the hospital-imprimatur notion is likely without defendant's urging, which did not occur. This court thinks it is not. It is common practice, those who labor in these vineyards know, for a hospital to allow a staffer to lend his expertise to litigants but, if normal work hours were invested, the hospital would not want to be "donating" expert services to some stranger's cause but would either bill or require the doctor to reimburse from funds the doctor "earned" on what was largely the employer's time. While one would not expect a jury to conclude this, either, the hospital-backing argument of plaintiff is wholly without merit.

In this regard, defendant-appellee also correctly notes that this argument was set before this court in plaintiff's unsuccessful 1997 post-trial motion to set aside the verdict. (See Plaintiff's Supplemental Motion to Set Aside Verdict dated April 28, 1997, page 18).

Next, plaintiff urges a new trial argument arising out of the fact that much (or most, plaintiff claims) of Dr. Blackburn's testimony took place in an evening videotaped session after Dr. Blackburn's testimony had begun, and when he was unavailable the next day, in the presence of the trial judge. The motion plaintiff urges is that, "in retrospect, Dr. Blackburn's motivation for getting a special accommodation from this court to give testimony starting at 4:00 p.m., at the end of his regular work day and in the evening was so that he would NOT (emphasis in original) have to give his hospital any money said for his testimony as he would legally have had to do as a full-time employee if he testified during the day on his hospital's time." (Page 13, Brief in Support of Plaintiff's Motion for New Trial, dated May 19, 2003.)

This rationale stretches further the already weak thread used by plaintiff to suggest that if the hospital were the billing agent, it would suggest to the jury the weight of a full hospital investigation. This CT Page 10389 court has bean shown no evidence consistent with a personal motivation of Dr. Blackburn to testify of an evening in order to get on his "own" time. The parties worked out the difficult scheduling with the court that the remainder of his testimony would be perpetuated via video on the evening of the day he began to testify live. In order to attempt maximum traction from the theory plaintiff advances, he would have the court conclude that Dr. Blackburn falsely proclaimed his unavailability so that the court would schedule continued testimony during a time of personal profit for himself. To state the notion is to set it up to observe it fall of its own weight.

The hospital's brief erroneously suggests that this argument has been raised before. Its citation is wrong; however, this is of no consequence, for the lack of merit does not rise from reiteration but from its core.

Plaintiff's next argument raises ostensibly more serious allegations. It suggests that documents of March 27, 1997, included in a Bill of Costs submission by the hospital (which had won its verdict on February 29, 1997), revealed $28,000-$33,000 allegedly attributable to the work of Isaac Greenberg, PhD.

This submission of "evidence" of such expensive work over the name of Greenberg does not reflect that it is Greenberg himself or alone who is the "worker," e.g., an entry re: February 26, 1997 bills $4,000 re: "All day at trial or in deposition." This is obviously a Blackburn-related expense, yet it is forwarded by Blackburns' associate, Greenberg, who signs the submission at the bottom for an entry. All or most of the pages of this back-up exhibit to the bill of costs are in similar form.

The rest of the documentation also leaves unclear (although not quite as unclear), whether Greenberg or someone else (such as Blackburn) is the "worker," all with regard to review of case material. Clearly, Dr. Blackburn must have done some reading, for no evidence discloses reports or sources written by Greenberg, as there is reference to "outlines" prepared by one Dr. David Driscoll.

A review of the cross-examination by plaintiff's counsel of Dr. Blackburn elicited a good deal of difficulty on Blackburn's part recalling the material.

Of course, it would have been possibly further helpful to plaintiff to be able to illustrate at trial that he was not forgetting but instead never read certain material, however, one must keep in mind certain points. A trier of fact would not clearly have been surprised to learn CT Page 10390 that Dr. Blackburn had reviewing help to spot issues or digest information. Further, he was never asked whether this occurred. Blackburn did say he read it all, plaintiff notes, but that is not to exclude assistance in memorializing. When one couples this to the fact that plaintiff never sought to depose Blackburn and never raised this issue on appeal (or cross-examination, as noted), the identification for a new trial is missing, when the basis is billings emanating from a person other than Blackburn without clarity as to how much was for work other than Blackburn's.

Incidentally, plaintiff further suggests this court disallowed "rebuttal," in what seems a Blackburn context. A citation is made to February 21, 1997, but no such transcript pages are submitted and the court finds none regarding rebuttal. This occurrence, if as stated, and if erroneous, is not the appropriate focus of a motion for a new trial for it was amenable to the appellate process.

Withal, the court has attempted to deal with the substance of the arguments presented. Defendants have raised many procedural flaws in plaintiff's new trial submission, suggesting the "merits" need not be reached; however, given that the motion must fail even if the merits were appropriate to weigh, the court did not rely upon procedural flaws, although they may well exist.

For all these reasons stated above, the plaintiff's motion for a new trial must be, and is, denied.

Nadeau, J.