Opinion
No. HHD X04 CV-0705023921 S
November 10, 2009
MEMORANDUM OF DECISION
This product liability matter is before the court concerning the defendant Smith Nephew's motion to preclude the testimony of Alan Litsky, M.D., Sc.D. (#174), a proposed expert disclosed by the plaintiffs on September 25, 2009. In response, the plaintiffs filed an objection (#179), to which the defendant replied (#180) on October 19, 2009.
The defendant contends that the disclosure of Dr. Litsky is untimely and violates the scheduling order to which the parties agreed and on which it relied, is highly prejudicial, will cause undue interference with the trial date of January 19, 2010, and that the delay in the disclosure has the appearance of being made in bad faith. In response, the plaintiffs argue that Dr. Litsky is a vital part of their case, that he was disclosed as soon they could adequately file a disclosure containing the requisite information, that there will be no interference with the trial date, and that a strict adherence to the scheduling order would have a disproportionally severe effect under the circumstances. They also assert that the disclosure was not made in bad faith and that the defendant will not be prejudiced.
I Background
The return date in this matter was September 4, 2007. In their complaint, which is premised on General Statutes § 52-572m, et seq., the plaintiffs allege that Robert Wegryn suffered serious physical injuries as a result of the October 2005 implantation of a knee replacement system which was manufactured by the defendant. The plaintiffs allege that the biconvex patellar component, which was part of the knee replacement system, was defectively designed and manufactured.
On October 7, 2008, the case was transferred to the Complex Litigation Docket. Counsel for the parties appeared before the court at a status conference on November 14, 2008, at which a schedule was agreed to and a scheduling order issued. According to the scheduling order, plaintiffs' experts were to be disclosed by May 1, 2009 and their depositions were to be completed by August 1, 2009. Dispositive motions were to be filed by September 1, 2009 (later modified to September 15, 2009). Jury selection is scheduled to commence on January 19, 2010.
By objection dated November 10, 2008, the defendant objected to producing an exemplar of the knee replacement system without a physician's prescription (#139). The plaintiff filed a motion seeking the court to order the defendant to comply (#142). By order dated December 16, 2008, the court denied the motion, stating that, according to applicable federal regulations, the device could be provided only to or on the prescription or other order of a practitioner for use in the course of his professional practice.
On June 26, 2009, the plaintiffs filed a request for inspection (#157), which was more limited in scope, requesting the defendant to make available an exemplar patellar component for inspection by their expert, Dr. Robert Rose, at the next session of his deposition, which had been commenced on June 18, 2009. At that deposition, Dr. Rose testified that he had no opinion as to whether there was a manufacturing defect. The defendant filed an objection to the request for inspection (#156).
Practice Book § 13-9(a) states: "In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, any party may serve in accordance with Sections 10-12 through 10-17 upon any other party a request to afford the party submitting the request the opportunity . . . to inspect and copy, test or sample any tangible things in the possession, custody or control of the party upon whom the request is served . . ."
The court issued a ruling on July 7, 2009 (#161) granting the request for inspection. The court found that the more limited request did not require the defendant to relinquish possession, custody, or control of the exemplar and that compliance with the request would not contravene the federal regulations.
Thereafter, the court held two status conferences, on July 13, 2009 and July 17, 2009 (by telephone), to discuss the schedule, including the re-scheduling of Dr. Rose's deposition and the inspection of the exemplar. During the July 17, 2009 conference it was reported that Dr. Rose was on vacation from July 15, 2009 to August 15, 2009, and was not available for the inspection of the exemplar and the completion of his deposition to occur during that time. The plaintiffs noted that they would agree to continuing the trial date to later in 2010 and that additional discovery might be needed after the exemplar was inspected. The defense reserved the right to object.
By letter dated July 21, 2009, the parties reported their agreement to a modified schedule, which called for the court-ordered inspection of the exemplar to take place on September 1, 2009 and Dr. Rose's deposition to be resumed on September 2, 2009. In the letter, the parties also reported their agreements that the deadline for the filing of dispositive motions would be extended from September 1, 2009 to September 15, 2009; the date for completion of depositions of plaintiffs' experts was extended to September 23, 2009; and that the defendant would disclose its experts by October 1, 2009, instead of by September 1, 2009. The date by which to complete the depositions of defendant's experts remained as December 1, 2009, as originally agreed.
Dr. Litsky was present at the September 1, 2009 inspection and informed the defendant that he had been retained by the plaintiffs. Dr. Litsky's curriculum vitae was in Dr. Rose's file when he was deposed in June 2009 and he was copied on correspondence from Dr. Rose, dated July 24, 2009. After Dr. Rose's deposition was completed in September 2009, the defendant took the deposition of plaintiffs' orthopedic expert, Dr. Sarokhan. The defendant filed its motion for summary judgment on September 15, 2009.
The court heard oral argument concerning that motion on October 9, 2009.
Ten days later, on September 25, 2009, the plaintiffs disclosed Dr. Litsky as an additional expert. In his disclosure, the plaintiffs state that he "is of the opinion that the product failed due to [a] surface quality defect in the manufacturing process of the patellar component, which ultimately led to a fatigue. This, coupled with a failure of the cement, placed an unacceptable stress on the patellar peg." This disclosure contrasts with the earlier disclosure concerning Dr. Rose, dated February 6, 2008 (#113), to which was annexed a report dated July 23, 2007. At page 4 of the report, Dr. Rose stated, "This prosthesis failed due to the presence of at least two defects: lack of an appropriate radius at the base of the post and surface quality at the same location." Further, he stated that "[a]t this time, as I have not reviewed the appropriate manufacturing specifications, I cannot say whether the defects are defects of design or of manufacture . . ."
Additional references to the background are discussed below.
II Discussion
Since this matter was commenced in 2007, the defendant's argument focuses on former Practice Book § 13-4, as it existed prior to recent amendments. "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).
Practice Book § 13-4(i) clarified that the version of the rule which was in effect on December 31, 2008 applies to cases commenced on or before that date.
The defendant's motion is also premised on Practice Book § 15-3, concerning motions in limine, but does not present argument based on that rule.
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 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).
In considering sanctions under the trial court's inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of Practice Book § 13-14, the Supreme Court also has stated, "[t]he factors to be considered by the court include: (1) whether noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party's case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct." (Internal quotation marks omitted.) CT Page 18326 Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 15, 776 A.2d 1115 (2001).
There is no dispute that the September 25, 2009 disclosure of Dr. Litsky was untimely, since it occurred more than four months after the May 1, 2009 deadline in the scheduling order for the disclosure of plaintiffs' experts. The late disclosure violated the scheduling order, which was clear, and Practice Book § 13-4(4) (which provided that disclosure was required "within a reasonable time prior to trial"). Accordingly, the court must consider whether, in the exercise of its discretion, the preclusion of Dr. Litsky's testimony is a proportional sanction. See former Practice Book § 13-4(4).
In so doing, the court must be guided by recent appellate decisional authority. In Hicks v. State, 287 Conn. 421, 948 A.2d 982 (2008), a motor vehicle accident case, the scheduling order required the plaintiff to disclose expert witness by May 11, 2005, and the defendant to do so by July 15, 2005, with trial scheduled to commence on September 21, 2005. See id., 287 Conn. 442, 444. While the plaintiff timely disclosed several damages experts, no expert as to liability was disclosed. See id., 442. On July 14, the defendant disclosed an expert who, among other subjects, would opine that, had the plaintiff been proceeding at the speed limit or slower, the accident would have been avoided. See id., 443. On August 17, more than three months after the May 11 deadline, the plaintiff disclosed an accident reconstructionist expert, and, on August 24, slightly less than one month prior to trial, provided the anticipated substance of the expert's testimony, which would rebut that of the defendant's expert. See id., 443. The trial court denied the defendant's motion to preclude the plaintiff's expert from testifying at the trial, and the defendant then deposed the plaintiff's expert. See id., 443.
On appeal, the Supreme Court concluded that the trial court properly viewed the defendant's disclosure as having raised the issue of speed. See id., 444-45. The Supreme Court noted that the defendant was able to depose the plaintiff's expert prior to trial, and the defendant's expert had the opportunity to review the plaintiff's expert's deposition, which included his opinions and calculations. See id., 445. Even though the court-ordered expert disclosure deadline had passed with the plaintiff having not disclosed an expert on liability, the Supreme Court concluded that the trial court did not abuse its discretion in determining that the defendant was not unduly prejudiced by the plaintiff's untimely disclosure. See id.
Even more recently, in Giblen v. Ghogawala, 111 Conn.App. 493, 959 A.2d 1059 (2008), the Appellate Court reversed the trial court's preclusion of the plaintiff's expert witness in a medical malpractice action, where, on October 25, 2005, the trial court had entered a scheduling order which required the plaintiff to disclose her experts by June 2, 2006, and scheduled trial for July 10, 2007. See id., 111 Conn.App. 495-96.
The plaintiff explained that her late expert disclosure, on November 21, 2006, was due to difficulties in communicating with her expert, who was in Peru, and who had suffered a personal injury. See id., 496, 499. The Appellate Court noted the materiality of expert testimony in a medical malpractice case as being a serious consideration. See id., 498-99. It also found, in view of the plaintiff's explanation for the late disclosure, that she had not acted in bad faith. See id., 499. Also, the plaintiff offered to transport her expert, at her expense, to be deposed in advance of the trial date. See id., 496. No finding was made by the trial court that the late disclosure would interfere with the trial date. See id., 499. The Appellate Court found that, since the defendant had disclosed his expert prior to the plaintiff's disclosure, the defendant could not reasonably claim that the plaintiff's late disclosure prejudiced his ability to prepare for trial. It determined that preclusion was disproportionate to the plaintiff's violation of the scheduling order. See id.
The history here reflects that the plaintiffs twice sought to have the defendant produce exemplars of the product at issue for inspection. It is evident that the purpose of such requests was to aid in developing expert testimony. The defendant's objections to the plaintiffs' requests for the production of exemplars were not premised on any claimed untimeliness of the requests.
While the plaintiffs' successful motion to compel the production of the patellar component exemplar could have been presented earlier, it was promptly pursued after Dr. Rose's deposition was commenced, but not completed, in June 2009. Unfortunately, the summer vacation period then occurred, and the parties agreed to inspection on September 1, 2009, almost two months after the court's July 7, 2009 order compelling production. The disclosure of Dr. Litsky, which concerns a claimed manufacturing defect, was promptly provided after the inspection occurred. Also, after the instant motion was filed, the plaintiffs stated that they would make Dr. Litsky available to be deposed in Connecticut, including on weekends.
On the record which is presented, the court declines to determine the credibility issues raised by the defendant as to Dr. Rose's testimony concerning when Dr. Litsky became involved in the case.
This matter involves complex medical issues. The disclosure of Dr. Litsky concerns a material issue, a claimed manufacturing defect. See Giblen v. Chogawala, supra, 111 Conn.App. 498-99. The defense was on notice, from the plaintiff's complaint, that such a claim was part of the plaintiff's case. See complaint, first count, ¶ 9. Clearly, once Dr. Rose testified that he had no opinion on that point, the plaintiff sought to obtain expert opinion as to that issue, and served its more limited inspection request. Conversely, the defendant relied on that testimony, in part, in moving for summary judgment.
While the defendant states that the plaintiff should have moved for a continuance of the trial in July 2009, it is clear that, once the inspection of the exemplar occurred, Dr. Litsky's proposed testimony was promptly disclosed. Correspondence reflects that defense counsel was on trial for much of October 2009 (continuing into November 2009) and, understandably, was unavailable to depose Dr. Litsky then. The defendant does not contend that it is unable to locate experts to respond to Dr. Litsky's disclosure.
Although the defendant claims that the disclosure is unclear, it does not present more than a bare assertion about this. The court need not consider this issue. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).
The court finds that, although the defendant is prejudiced by the plaintiff's late disclosure, primarily in having filed its motion for summary judgment and exposed defenses, that situation stems largely from the fact that the exemplar inspection occurred so late in the process. In significant part, it is the date of that inspection which led to the disclosure of Dr. Litsky being delayed until September 25, 2009. The plaintiffs did not wait to address the manufacturing defect issue until after reading the defendant's summary judgment presentation. Instead, materials were sent to Dr. Litsky in July 2009 and he was brought to the inspection in early September 2009. The court is unpersuaded that the time taken thereafter to formulate his opinions in this complex matter, after he inspected the exemplar, was unwarranted. The delay in disclosure here was not wilful.
The situation here differs markedly from those in McVerry v. Charash, supra, 96 Conn.App. 589, and other cases cited by the defendant. In McVerry, the plaintiff had received six extensions of time to disclose experts. Then, after missing the last deadline, the plaintiff disclosed his experts nearly eleven months later. See id., 96 Conn.App. 592-93. Here, in this 2007 case, there has been no previous extension of time for expert disclosure by the plaintiffs. Further, in McVerry, the plaintiff informed the trial court that he wanted to postpone disclosure until after the defendant had been deposed. See id., 598. No good cause was advanced for the delayed disclosure. See id., 593.
In contrast to the situation here, the trial court and the Appellate Court rejected the plaintiff's claims that the late disclosure was inadvertant and not wilful. See id., 598. Also, in McVerry, the case was commenced in May 2001 and trial was scheduled for September 15, 2004, about three years and four months later. Here, as noted above, the time between commencement and scheduled trial is one year less, two years and four months.
Similarly, in Randolph v. Norwalk Hospital, Superior Court, judicial district of Stamford at Norwalk. Docket No. CV 03 0198393 (September 26, 2006, Adams, J.), also cited by the defendant, over all, the facts evidenced significantly greater lack of compliance by the plaintiff, without any mitigating circumstances, in contrast to those which exist here. The plaintiff disclosed an expert more than three and one half months after the time ordered for disclosure, a time period slightly shorter than the four months and twenty-five days delay here. However, the court found that no opinions held by the proposed expert as to medical negligence were disclosed. The court found that neither the disclosures, nor her subsequent deposition, provided the defendant with sufficient information to know and understand the plaintiff's case against it. Here, in contrast, as stated above, Dr. Litsky's opinions concern a claimed manufacturing defect. Since he has not yet been deposed, the court cannot conclude that his deposition testimony will be insufficient.
The court in Randolph v. Norwalk Hospital, supra, Superior Court, Docket No. CV 03 0198393, also found that no reason or excuse was provided for violating the scheduling order. This contrasts with the history here, as explained above. In Randolph, the court concluded that, in effect, there was no disclosure, even though only two weeks remained before trial. This is far from the case here.
The situation in Shukis v. Board of Education, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 0104038 (May 2, 2007, Aurigemma, J.), cited by the defendant, also differs. There, according to a modified scheduling order, the plaintiff was to disclose his experts by August 1, 2006, but did not do so. As of September 25, 2006, the plaintiff had disclosed five experts, including Professor Luce and Dr. Baillie. On the record, plaintiff's counsel stated that the late disclosures were detailed and complete. The court permitted the late-disclosed opinions, and precluded the plaintiff from offering any opinions not disclosed in existing reports.
Subsequently, Dr. Baillie and Professor Luce were deposed. Thereafter, the plaintiff's counsel showed photographs to Dr. Baillie which had been in the plaintiff's possession since before the date of the original complaint. The plaintiff then sought to supplement his report with pictures and to offer a new opinion though Professor Luce, after he testified that he had never been asked to opine on that topic.
The court concluded that it had given the plaintiff adequate extensions of time. It also noted that the case involved events which occurred seven years previously. Since the plaintiff previously had stated on the record that the already-disclosed opinions of Dr. Baillie and Professor Luce were complete and detailed, and since no new information had arisen, the court found that the plaintiff had failed to present any good reasons for supplementing the opinions, and limited the plaintiff to the opinions which existed previously.
As discussed above, here, in contrast, the court-ordered inspection of the exemplar occurred in September 2009, which amounts to the provision of new information, after the May 1, 2009 deadline for expert disclosure. Also, there have been no previous extensions of time for the plaintiffs to disclose experts, and the events at issue occurred about four years ago, not seven.
The facts here also differ substantially from those in Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 47, 830 A.2d 1240 (2003) (subject matter of experts' opinion disclosed four days prior to trial); and Caras v. Schlessel, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0282412 (August 16, 2005, Wiese, J.) (defendant acknowledged that testimony of second expert was cumulative).
On balance, the court concludes that the policy preference for providing a trial on the merits in this complex matter outweighs any prejudice which the defendant has suffered. The court finds that the defendant has not been unduly prejudiced by the late disclosure. See former Practice Book § 13-4(4). Preclusion of Dr. Litsky would be a disproportionate sanction.
The defendant is entitled to depose Dr. Litsky, and may have to re-depose the plaintiffs' orthopedic expert. After completing the depositions of the plaintiffs' experts, the defendant is entitled to extensions of time in order to disclose its own experts, and to file a new dispositive motion in advance of trial. A new schedule and new trial date will be needed.
For the reasons explained above, the court also finds that there has been no undue interference with the orderly progress of the case to trial. See former Practice Book § 13-4(4).
CONCLUSION
For the foregoing reasons, the defendant's motion to preclude is denied. A status conference in this matter is scheduled for Friday, November 20, 2009, at 10:00 a.m., in Room 312.
It is so ordered.