Opinion
20-P-1351
01-25-2022
NICHOLE CHACE, personal representative, [1] v. LESLIE E. STERN.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
A jury in the Superior Court returned a verdict in favor of the defendant in this medical malpractice action. The plaintiff appeals, arguing that two defense experts should not have been permitted to opine, based on certain radiological images, that hardware that the defendant placed in the spine of the plaintiff's decedent was properly positioned during surgery and later changed position. The plaintiff contends that those experts' opinions were not sufficiently disclosed during pretrial discovery. We affirm.
Background.
Before trial, the plaintiff disclosed that her expert would opine, based on magnetic resonance imaging (MRI) images taken in August 2010 and on a computerized tomography (CT) scan taken in December 2011, that the hardware placed by the defendant during the May 2010 surgery was "malposition[ed]." The defendant disclosed that his experts would opine that at the time of the surgery, the hardware was appropriately positioned, as shown by images taken on May 3 and May 5, 2010. The defendant disclosed that one defense expert would "testify generally regarding migration and movement of interbody hardware," and the other would "explain that while there is no evidence in this case, devices placed in the interspace in an appropriate manner, can later become extruded from the interspace."
The plaintiff moved in limine to preclude the defense experts from opining that the hardware moved after surgery. She maintained that the defendant's pretrial disclosures were insufficient because he said that one expert would testify "generally" regarding migration and movement of hardware, and the disclosure as to the other expert included the qualifier "while there is no evidence in this case." The plaintiff maintained that she first learned of the defense experts' opinions shortly before trial, when the defendant produced a proposed exhibit that juxtaposed images from the August 2010 MRI with those from the December 2011 CT scan, with markings depicting the defense experts' opinions as to the change in position of the hardware. The plaintiff argued that the defendant had not disclosed those expert opinions in sufficient time to permit her to obtain an expert opinion comparing the 2010 and 2011 images. The trial judge denied the motion, finding that the defendant timely had disclosed the substance of his experts' opinions. As to the defense experts' opinions that the hardware had migrated after surgery, the judge commented, "I don't think it's that new of a theory," noting that the images from both 2010 and 2011 would be in evidence, and the experts could offer competing interpretations of what they showed.
The plaintiff did not move for a continuance, but the judge commented that he would not give one.
At trial both defense experts testified, over objection, that the hardware was positioned correctly at the time of surgery and later moved. After the jury returned a defense verdict, the plaintiff moved for a new trial, again arguing that the defendant had not timely disclosed his experts' opinions that the hardware moved after surgery, and that as a result the plaintiff was "ambushed" at trial. After a hearing, the trial judge denied the motion.
Discussion.
The plaintiff argues that the trial judge abused his discretion in permitting the defense experts to testify, because the plaintiff's attorney was "unfairly surprised" by the experts' opinions that the hardware had moved. We review for abuse of discretion a judge's decision to permit expert testimony despite a claim that "the proponent has not given proper notice of . . . the subject matter of the expert's anticipated testimony." Race v. Laing, 472 Mass. 630, 637 (2015), quoting Elias v. Suran, 35 Mass.App.Ct. 7, 10 (1993). A judge's decision is an abuse of discretion only if the judge "made 'a clear error of judgment in weighing' the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The Massachusetts Rules of Civil Procedure require the parties to disclose the "substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Mass. R. Civ. P. 26 (b) (4) (A) (i), 365 Mass. 772 (1974). Disclosure "facilitate[s] the fair exchange of information about critical witnesses and . . . prevent[s] unfair surprise." Race, 472 Mass. at 636-637. If the pretrial disclosure sufficiently describes the expert's expected opinion, no prejudice results. See Larkin v. Dedham Med. Assocs., Inc., 93 Mass.App.Ct. 661, 667 (2018) (expert disclosure "was consistent with and not qualitatively different from his trial testimony"). Even undisclosed expert testimony may be admissible and not prejudicial if it "serve[s] as a permissible explanation for, and development of, the expert's disclosed opinion." Race, supra at 641.
We conclude that the trial judge did not abuse his discretion in ruling to admit the defense experts' testimony. The disclosures as to both experts sufficiently put the plaintiff on notice as to the substance of their opinions that the hardware was properly placed by the defendant, and moved some time later. See Race, 472 Mass. at 636-637; Larkin, 93 Mass.App.Ct. at 667. The qualifier that one expert would testify "generally" about migration and movement of hardware certainly did not render the disclosure insufficient. See P.M. Lauriat, S.E. McChesney, W.H. Gordon, & A.A. Rainer, Discovery § 3:28 (2d ed. 2008 & supp. 2021) (sample form of defendant's response to plaintiff's expert interrogatory prefaced by "Mr. B. is expected to testify generally about"). As for the disclosure that the other expert would testify that "while there is no evidence in this case, . . . [hardware] can later become extruded," it was within the judge's sound discretion to rule that it sufficiently disclosed the opinion that the hardware did move. See Race, 472 Mass. at 641 (testimony was an "explanation for, and development of, the expert's disclosed opinion"). See also Larkin, 93 Mass.App.Ct. at 667-668 (expert testimony that pushing during childbirth caused plaintiff's injuries was consistent with pretrial disclosure that Caesarean section would have prevented injuries). Furthermore, we agree with the judge that the experts could compare the images in evidence, which included those taken at the time of the surgery in May 2010, the August 2010 MRI, and the December 2011 CT scan.
Because we conclude the judge did not abuse his discretion in allowing the expert testimony, the judge also did not abuse his discretion in denying the plaintiff's motion for a new trial. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
Judgment affirmed.
Order denying motion for new trial affirmed.
Green, C.J., Singh & Grant, JJ.
The panelists are listed in order of seniority.