Opinion
FBTCV186074036S
01-23-2020
Christopher Dzwonkowski, Administrator of the Estate of John J. Ostrowski v. Northeast Medical Group, Inc. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Arnold, Richard E., J.T.R.
MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER
Richard E. Arnold, J.T.R.
Pursuant to Practice Book § 13-5, the defendants, on behalf of its employees and agents, has requested that the court issue an Order protecting any and all employees and/or agents of the defendants, including those set forth in the plaintiff’s Treating Health Care provider Expert Disclosure, from being called by the plaintiff to testify as expert witnesses at trial or from being questioned regarding issues of standard of care, damages or causation during the course of a deposition. It is the defendants’ position that while health care professionals who have rendered treatment may testify to facts known to them regarding their own treatment, they are entitled to a qualified expert privilege, such that they cannot be made to act as unretained expert witnesses by the plaintiff against their will.
Practice Book Sec. 13-5 reads as follows:
The defendants have filed a memorandum of law in support of their position, as a part of their motion for a protective order. The motion is dated August 21, 2019. The plaintiff has filed an objection dated August 26, 2019. The defendants, thereafter, filed a reply to the plaintiff’s objection. The defendants’ reply is dated September 18, 2019.
The court heard oral argument on the matter on September 23, 2019. At oral argument, the plaintiff, for the first time, raised the issue of whether or not, the defendants had standing to file a motion for a protective order on behalf of non-parties, including but not limited, to Dr. Garvey, as it relates to the assertion of the qualified expert privilege. The court then ordered the parties to file supplemental legal briefs addressing the issue. The defendants filed a supplemental brief dated October 10, 2019, and the plaintiff filed a supplemental brief dated October 15, 2019.
I
Background
Plaintiff, as the Administrator of the Estate of John Ostrowski, the decedent, instituted this medical malpractice action by way of a summons and complaint filed with the court on or about April 30, 2018. The named defendants were Bridgeport Hospital and Richard Garvey, M.D. On February 2, 2019, a motion to substitute a party was filed, wherein the plaintiff substituted the defendant Northeast Medical Group, Inc. for the defendant, Richard Garvey, M.D. In the substituted complaint, the plaintiff alleges the defendants negligently treated the decedent when he presented to the Bridgeport Hospital on April 28, 2017, complaining of abdominal pain. The decedent underwent a CT Scan on April 29, 2017, and subsequently underwent surgery for a ventral hernia on May 5, 2017. Subsequent to this surgery, the decedent became septic and died. Plaintiff claims the decedent’s death on May 7, 2017, is the result of the defendants’ alleged negligence and failure to appropriately treat the decedent.
On July 17, 2019, the plaintiff filed the "Plaintiff’s Treating Health Care Provider Disclosure" disclosing the decedent’s treating health care providers as expert witnesses. The disclosed names, numbering between 49 or 53 providers, are individuals whose names appear in the Bridgeport Hospital medical records. The plaintiff’s disclosure states that these listed individuals "may offer expert opinions and/or testimony in accordance with the produced medical records and reports of care and treatment rendered to the deceased plaintiff, John Ostrowski." According to the defendants, some of the listed individual providers rendered direct care to the decedent, while others simply drew blood or interpreted a radiology study or a pathology specimen. The plaintiff’s disclosure form, at its end, also contains a "catch-all" disclosure of "Agents, Servants and/or Employees" of Bridgeport Hospital. The defendants characterize this last provision as an inappropriate attempt to preserve a future opportunity to disclose and/or call other unnamed health care providers as expert witnesses who were not listed, beyond scheduled disclosure deadlines.
The list disclosed names 53 individuals. The defendants note that some appear to be duplicates which results in the accurate number of names listed being 49.
Included in the "Plaintiff’s Treating Health Care Provider" disclosure list, is Richard Garvey, M.D., who was originally a named defendant in this action. The plaintiff’s expert witness list states, "[t]hough not retained by the plaintiffs, Dr. Richard Garvey may be called upon at the time of trial to offer expert testimony based upon his care and treatment of the deceased plaintiff ..." "He may also testify regarding the applicable standard of care for his care and treatment of John Ostrowski, departures from the standard of care and the causal relationship between those departures and the injuries and death suffered ..."
The defendants argue that the plaintiff has endeavored to not only disclose Dr. Garvey as an expert witness without having to retain him as such, but the plaintiff has also attempted to disclose Dr. Garvey as an expert to opine as to whether his own or his colleagues’ care conformed with the standard of care and whether such treatment caused the death of the decedent. It is the defendants’ position that the disclosure of fifty-three (53) non-party individuals as experts, without having retained them as experts, is an effort to compel these listed individuals to act as experts for the plaintiff and such effort is improper. The defendants state these individuals, through the defendants, are protected by a qualified expert privilege, such as they cannot be made to act as unretained expert witnesses by the plaintiff against their will.
The plaintiff, in his memorandum of law, argues that the Appellate Court in Millium v. New Milford Hosp., 129 Conn.App. 81, 108 (2011), aff’d, 310 Conn. 711 (2013) refused to recognize an absolute testimonial privilege for treating physicians. While conceding that Superior Court decisions are split on whether plaintiffs can elicit expert opinions in the depositions of defendant medical providers in medical malpractice cases, the plaintiff argues there are appellate cases, statutes or Practice Book sections that support the defendants’ position.
At oral argument on the defendants’ motion for a protective order, the plaintiff raised the additional issue, that the defendants did not have standing to file a motion for a protective order on behalf of non-parties, including Dr. Garvey, again citing Millium v. New Milford Hosp., supra, 129 Conn.App. 81, as legal authority. The defendants, in opposition, argue that the non-party individuals disclosed by the plaintiff, are agents, servants and/or employees who provided medical care to the decedent in the course of their employment or contractual obligations with the corporate defendants, and it is axiomatic that corporations may only act by and through their agents and employees. See. Maharishi School of Vedic Sciences, Inc. v. Connecticut Constitution Associates Limited Partnership, 260 Conn. 598, 606 (2002). The defendants claim this negates any argument that the defendants do not have standing to move for a protective order on behalf of their own agents, servants and/or employees.
II
Standing
The plaintiff in arguing that the defendants do not have standing to file a protective order because even if a qualified expert privilege exists for "any and all employees and/or agents of the defendants," including Dr. Garvey, it would be personal to the witnesses and not within any party’s rights to assert, including the present defendants, Northeast Medical Group and Bridgeport Hospital. Millium v. New Milford Hosp., supra, 129 Conn.App. 81, 107. "[T]he defendant contends that the treating physicians enjoyed an absolute privilege not to be pressed into service as experts for the plaintiff ... we disagree with the defendant." Id. "First, to the extent that such a rule would give the subpoenaed expert witnesses in this case the right to refuse to attend a deposition, we fail to see how the defendant has any standing to assert the witnesses’ rights. Even if we were to assume, arguendo, that there was such a privilege, it would be personal to the witnesses and not within the scope of any party’s rights to assert." Id.
The defendants argue that the non-party individuals disclosed by the plaintiff were disclosed because they were identified as agents and/or employees of Bridgeport Hospital, and the plaintiff disclosed random individual treating providers from the decedent’s medical records maintained in the ordinary course of business by and in behalf of the corporate defendants. It has been confirmed by case law that the corporate entities may act only through their agents, servants and employees. It is noted that the plaintiff included a "catch-all" disclosure at the end of the expert disclosure list purporting to disclose "Agents, Servants and/or Employees" of Bridgeport Hospital. This disclosure by the plaintiff, when viewed in light of existing case law, should negate any argument by the plaintiff that the defendants do not have standing to move for a protective order on behalf of their own agents and/or employees.
Regarding Dr. Garvey, it should be noted that he was an individually named defendant at the inception of this action. Dr. Garvey was an employee of Northeast Medical Group, Inc. at the time of the treatment and care of the decedent. Subsequently, as noted earlier herein, Northeast Medical, Garvey’s employer, was substituted as a named defendant in lieu of Dr. Garvey, by way of an Amended Complaint. Therefore, whether the fifty-three individuals named in the plaintiff’s expert disclosure are current employees or not, these individuals provided medical care, treatment or services to the plaintiff’s decedent and did so in the course of their employment or contractual obligations with the corporate defendants. As such, the defendants argue they have standing to move for a protective order.
The disclosure of expert witnesses is governed by Practice Book § 13-4. A review of the pleadings reveals that the plaintiff has filed two separate expert witness disclosures. The initial disclosure dated July 17, 2019 is titled "Plaintiff’s Treating Health Care Provider Disclosure." It contains fifty-five listed names and an additional entry which lists "Agents, servants and/or employees, Bridgeport Hospital, 267 Grant Street, Bridgeport, Ct.." Thirty-five of the names do not appear to be medical doctors. Twenty of the names are identified by the designation of "M.D." following their names. Dr. Garvey is one of the medical doctors identified. These fifty-five individuals are allegedly treating health care providers, whose names were culled by the plaintiff from produced medical reports of the decedent’s care and treatment.
Practice Book § 13-4 reads in relevant parts as follows:
The plaintiff’s second expert witness disclosure is dated July 19, 2019, listing Leo Gordon, M.D. of Los Angeles, California. This disclosure notes that Dr. Gordon is a board-certified general surgeon, "who will testify that the defendants violated the standard of care" in their treatment of the decedent, Ostrowski, and that these violations caused injury and death to Ostrowski. The substance and basis for Dr. Gordon’s opinions are contained in the disclosure. Dr. Gordon’s disclosure states that the "standard of care for a symptomatic incarcerated ventral hernia with a marked bowel obstruction requires a general surgeon to operate urgently." Gordon apparently will testify that surgery should have been performed on the decedent within 24-48 hours of receiving CT Scan results on April 29, 2017. Gordon concludes that by failing to operate on the decedent within 24-48 hours of the CT Scan results, Dr. Garvey violated the surgical standard of care by taking a non-operative approach to an operative condition. Gordon will testify that to a reasonable degree of medical certainty that if surgery had been performed by May 1, 2017, Ostrowski, the decedent, would have survived. It is apparent that the plaintiff’s cause of action is aimed squarely at the actions or inactions of Dr. Garvey in Garvey’s care and treatment of the decedent. Dr. Gordon does not reference or allege that any other employees of the defendants were medically negligent. Dr. Garvey is a general surgeon, as is Dr. Gordon. How the plaintiff will utilize non-surgeon medical treaters to testify as to the standard of care for a surgeon remains to be seen.
The plaintiff’s original complaint in this matter named Dr. Garvey as a defendant and alleges that Garvey specializes in general surgery. He is identified, as well, as a "servant, agent, apparent agent and/or employee of the co-defendant Bridgeport Hospital. The second count of the original complaint, as to the negligence of Bridgeport Hospital, lists eight surgical resident physicians as additional agents, servants and employees of the hospital. The plaintiff’s substituted complaint, in Count One against Northeast Medical, now alleges Garvey is an employee of Northeast Medical. Count Two as to Bridgeport Hospital no longer alleges Garvey is an employee of Bridgeport Hospital. Count Two specifically lists the eight surgical resident physicians as additional agents, servants and employees of the hospital along with a "catch all phrase" of other agent, servants and employees consisting of "general surgeons, both in-house and attending, radiologists, nurses, anesthesiologists, and other health care professionals including physicians.
In Millium v. New Milford Hosp., supra, 129 Conn.App. 81, a medical malpractice action, the plaintiff had gone to the Mayo Clinic in Rochester, Minnesota to seek treatment in connection with her cognitive health. She was first seen by Dr. McAvoy of the Mayo Clinic. The plaintiff brought with her certain records and reports regarding the anoxic incident that occurred while she was in the care of the defendant. Dr. McAvoy rendered an evaluation and her impressions regarding the plaintiff’s health status. Subsequently, McAvoy then referred the plaintiff to two other physicians, Dr. Josephs and Dr. Dupont in the behavioral neurology unit at the Mayo Clinic. These doctors concluded that the plaintiff’s cognitive dysfunction related back to anoxic encepholopathy suffered during the plaintiff’s respiratory arrest in 2002. Subsequently, the plaintiff disclosed nine expert witnesses, including Dr. McAvoy and Dr. Josephs. All experts were disclosed on the issues of causation and damages.
The defendant filed a motion to preclude the plaintiff’s expert witnesses, claiming the plaintiff had failed to make her expert witnesses available for depositions. In particular, an internal policy at the Mayo Clinic, limited the depositions of its treating physicians. The plaintiff represented to the trial court that none of the Mayo Clinic witnesses had been retained for testimony at trial, but had been disclosed as experts solely for the purpose of introducing their medical records. The defendant continued to repeat its request that due to undue prejudice and delay in the taking of the Mayo Clinic doctors’ depositions, the plaintiff should be precluded from relying on the medical records for the two treating physicians from the Mayo Clinic.
Eventually, based on orders of the trial court, the parties went forward with the deposition of Dr. Josephs. The deposition was not completed. The plaintiff then issued a subpoena seeking to compel the continued deposition of Josephs, as well as, a deposition of McAvoy. Counsel for the Mayo Clinic filed a motion for a protective order seeking to preclude the plaintiff from completing Josephs’ deposition and from conducting a deposition of McAvoy contending that the depositions were an annoyance and unduly burdensome. The defendant joined in the Mayo Clinic’s motion for the protective order. The defendant also argued that neither Josephs or McAvoy could be compelled to testify as to their expert opinions on causation. The trial court vacated its previous order granting commissions for the depositions of Josephs and McAvoy. Thereafter, the defendant filed a motion for summary judgment arguing the plaintiff could not establish the element of causation by expert testimony. Specifically, the defendant argued that the treating physicians opinions contained in their medical reports were insufficient to establish that the alleged injuries suffered by the plaintiff were caused by the defendant. The trial court agreed and granted summary judgment in the defendant’s favor.
The appeal followed. Our Appellate Court ruled that the medical reports were improperly precluded for reasons set forth in Millium v. New Milford Hosp., supra, 129 Conn.App. 81, 99; see also. Id., at 101-09. The Appellate Court also failed to see how the defendant had any standing to assert the rights of the doctor witnesses from the Mayo Clinic when arguing the motion for the protective order based on a claimed testimonial privilege. Millium v. New Milford Hosp., supra, 129 Conn.App. 81, 107. The Appellate Court reversed the granting of summary judgment by the trial court and remanded the case for further proceedings. Id., 109. The Appellate Court also declined the defendant’s invitation to create a testimonial privilege that would prevent treating physicians, such as Josephs and McAvoy from being deposed in the case at issue. Id., 109.
Our Supreme Court granted certification and affirmed the judgment of the Appellate Court. Millium v. New Milford Hospital, 310 Conn. 711 (2013). In doing so, however, the Supreme Court refused to address the question as to whether physicians have a testimonial privilege against being compelled to provide expert testimony under various circumstances, including the circumstances presented in the case at issue, finding that to do so would contravene the court’s jurisdictional rule against rendering advisory opinions. Id., 740-41. "We underscore that the narrow issue that was raised in the present case is whether a treating physician can be compelled to testify as an expert regarding an opinion previously expressed by that physician. As we have explained, there is no need to resolve that question under the particular circumstances of this case. The plaintiff has never claimed that she is entitled to compel expert opinion regarding matters on which Leslie’s treating physicians had expressed no opinion in their reports. Indeed, the Appellate Court’s opinion did not address that broader issue. Accordingly, we need not address that issue either." Id., 741. Likewise, the Supreme Court did not address the issue of the defendant’s standing to file for a protective order, asserting testimonial privilege for the Mayo Clinic physicians.
The initial issue presented to this court is whether the defendants, Bridgeport Hospital and Northeast Medical Group, Inc. have the requisite standing to request that court issue an order protecting any and all employees, agents of the defendants, including but not limited to those set forth in the plaintiff’s treating health care provider expert disclosure list, from being called at the time of trial and/or being questioned regarding issue of the standard of care, damages or causation during the course of a deposition. All such parties disclosed are alleged employees or agents, of the corporate defendants, including Dr. Garvey. All medical providers listed are non-parties.
The court finds the defendants do have standing to file the subject motion for protective order despite the Appellate Court’s decision in Millium v. New Milford Hosp., supra, 129 Conn.App. 81, 107. There are differences in the present case that distinguishes it from Millium v. New Milford Hosp., supra, 129 Conn.App. 81. Unlike the facts which faced the Appellate Court in Millium, the more than fifty listed medical provider experts in this matter are all employees, and/or agents of the named defendants. In Millium, the subject treatment providers were employees and/or agents of the Mayo Clinic, a nonparty. It has been previously noted, herein, that the plaintiff included a "catch-all" disclosure at the end of the expert disclosure list purporting to disclose "Agents, Servants and/or Employees" of Bridgeport Hospital, which has the unlimited potential of expanding the plaintiff’s disclosure of expert witnesses. To expect each listed known or unknown individual medical provider to file his or her own motion for a protective order would be unduly burdensome, not to mention the expense of doing so, if each were required to engage the services of their own legal counsel to file a motion for protective order in their behalf. By listing a multitude of medical providers whose names were culled from the decedent’s medical reports, some of whom simply drew blood or interpreted a radiology study or a pathology specimen, it appears the plaintiff may be violating the spirit, if not the intent, of the expert witness disclosure rules. Not all of those individuals listed could testify as to the standard of care and causation regarding a general surgeon or physicians. It is noted that the plaintiff’s expert, Dr. Gordon, a general surgeon, does not allege or reference that any employee of the defendants, other than Dr. Garvey, also a general surgeon, was negligent in the care and treatment of the decedent. As with all the parties named in the plaintiff’s disclosure of expert witnesses, Dr. Garvey is a non-party and is an employee and/or agent of the defendants. Corporations may only act by and through their agents and employees. See Maharishi School of Vedic Sciences, Inc. v. Connecticut Constitution Associates Limited Partnership, supra, 260 Conn. 598, 606; see also, Lapierre v. Pareles, Superior Court, judicial District of Hartford, Complex Litigation Docket at Hartford. Docket No. X03HHDCV136046945S (May 31, 2017, Moll, J.) (The corporate defendants filed motions for protective orders as to their physician employees. The standing of the corporate defendants was not challenged; nor was the issue decided by the court). The corporate defendants have standing to move for a protective order on behalf of their own agents, servants and/or employees.
The complaint in Lapierre v. Pareles, Superior Court, judicial District of Hartford, Complex Litigation Docket at Hartford. Docket No. X03HHDCV136046945S (May 31, 2017, Moll, J.), alleged, among other things, the following: "At all relevant times, Dr. Pareles was a duly licensed physician, specializing in cardiology, was an employee, agent, and/or apparent agent of CCA, CMG, Hartford HealthCare Corporation (HHC), and/or Hartford Hospital, and acted within the scope of his agency and/or employment in his treatment of the plaintiff’s decedent. At all relevant times, Dr. Conway was a duly licensed physician, specializing in pulmonology; Dr. Lawlor was a duly licensed physician, specializing in infectious disease; and Drs. Pandika and Patel were duly licensed physicians, practicing as hospitalists. At all relevant times, Drs. Conway, Lawlor, Patel, Pandika were employees, agents, and/or apparent agents of CMG, HHC, and/or Hartford Hospital, and acted within the scope of their agency and/or employment in their treatment of the plaintiff’s decedent." Id.
III
Testimonial Privilege
The defendants filed their motion for a protective order to prevent those individual medical providers listed in the plaintiff’s expert disclosure from being called by the plaintiff to testify as expert witnesses at the time of trial or from being questioned regarding issues of the standard of care, damages or causation during the course of a deposition. The defendants maintain that while health care professionals who have rendered treatment to this decedent may testify as to facts known to them regarding their own treatment, they are entitled to a "qualified expert privilege" such as they cannot be made to act as unretained expert witnesses by the plaintiff against their will. Of particular interest to the defendants is Dr. Richard Garvey, a general surgeon and employee/agent of the defendants. The plaintiff has disclosed that Dr. Garvey, now a non-party, who has not been retained by the plaintiff, might be called at the time of trial to offer expert testimony based upon his care and treatment of the deceased. The plaintiff further discloses that Garvey may also testify regarding the applicable standard of care for his own care and treatment of the deceased, as well as, any departures from the standard of care and the causal relationship between any departures from the standard of care and the injuries and death suffered by the decedent. Thus the defendant claims the plaintiff has not only disclosed Garvey as an expert witness without retaining him, but is attempting to have Garvey opine as to whether his own care of that of his colleagues conformed with the standard of care and whether such treatment caused the death of the decedent.
"[T]he [trial] court’s inherent authority to issue protective orders is embodied in Practice Book § 13-5 ..." Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221 n.59, 884 A.2d 981 (2005). "[D]iscovery related protective orders ... are injunctive in nature. Such orders have both the force and effect of an injunction, and serve a similar equitable purpose, namely, to regulate prospectively the conduct of the parties, either by restraining them from acting or by requiring them to act under circumstances that, if not so regulated, could lead to unduly harmful consequences ..." Peatie v. Wal-Mart Stores, Inc., 112 Conn.App. 8, 14 (2009) citing Rosado v. Bridgeport Roman Catholic Diocesan, Corp., supra, 276 Conn. 168, 221.
Practice Book § 13-5 Protective Orders reads as follows:
"[O]nce issued, protective orders, like injunctions, need not remain in place permanently ... and their terms are not immutable. It is well-settled that a trial court retains the power to modify or lift a protective order that it has entered ... Indeed, courts and commentators seem unanimous in finding ... [that courts have] an inherent power to modify discovery-related protective orders ... when circumstances justify." (Citation omitted; internal quotation marks omitted.) Id., at 214-15, 884 A.2d 981.
The use of protective orders and the extent of discovery is within the discretion of the trial judge. See Lougee v. Grinnell, 216 Conn. 483, 491, 582 A.2d 456 (1990), rev’d on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999); State v. Jacobs, 70 Conn.App. 488, 502, 802 A.2d 857 (2002), vacated and remanded, 265 Conn. 396, 828 A.2d 587 (2003); Verderame v. Pryor, Superior Court, judicial district of New Britain, Docket No. CV-99-0496040-S, 2001 WL 400361 (January 24, 2001) (Kocay, J.). "We have long recognized that the granting or denial of a discovery request ... is subject to reversal only if such an order constitutes an abuse of that discretion ... [I]t is only in rare instances that the trial court’s decision will be disturbed ... Therefore, we must discern whether the court could [have] reasonably conclude[d] as it did." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006).
With respect to the scope of a qualified expert privilege, the defendants rely upon Redding Life Care, LLC v. Town of Redding, 174 Conn.App. 193 (2017) and several superior court decisions. In Redding "the Appellate Court granted the writ of error and remanded the case to the trial court with direction to vacate the order denying the plaintiff in error’s motion for a protective order. The Appellate Court created an unretained expert privilege. In defining the parameters of this privilege, the Appellate Court explained that on remand, in the normal course of events, the trial court should in determining whether to grant a protective order because" ‘the witness’ testimony is barred by the qualified unretained expert privilege, consider (1) whether under the circumstances, he reasonably should have expected that, in the normal course of events, he would be called upon to provide opinion testimony in subsequent litigation; and (2) whether there exists a compelling need for his opinion testimony in this case ...’ Redding Life Care, LLC v. Redding, 331 Conn. 711, 715-16 (2019). The Town of Redding filed a petition for certification to appeal the Appellate Court’s decision. The Supreme Court granted the petition limited to three issues." First, does Connecticut recognize a qualified expert testimonial privilege in pretrial discovery (and at trial) permitting an unretained expert to withhold testimony regarding an opinion that the expert had previously rendered and documented in a written report? Second, if Connecticut does recognize the privilege, what is its scope? Third, does the Supreme Court have jurisdiction to grant certification to appeal from the Appellate Court’s final determination of a writ of error?" Id., 717.
The Supreme Court concluded that the Appellate Court lacked subject matter jurisdiction. The trial court’s order did not constitute an appealable final judgment thereby depriving the Appellate Court of subject matter jurisdiction over the subject writ of error. Redding Life Care, LLC v. Town of Redding, Superior Court, judicial district of New Britain at New Britain, Docket No. HHBCV13-6021904 (Sept. 25, 2019, Aronson, J.T.R.). The defendants in the present matter cite the Appellate Court’s decision creating a qualified unretained expert privilege as good law, despite the Supreme Court’s holding that the Appellate Court lacked subject matter jurisdiction to consider the appeal by way of writ of error.
"The Supreme Court’s decision in Redding Life, 331 Conn. 744, makes it clear that the discovery order issued by the trial court does not constitute a final judgment. Therefore, as the Appellate Court was without jurisdiction to consider the merits of Salinas’ appeal by way of a writ of error, its formulation of a rule of law recognizing a non-party privilege of an unretained expert is nothing more than dicta." Id. "As recited in Redding Life, ‘[t]he judgment of the Appellate Court is reversed and the case is remanded to that court with direction to dismiss the writ of error for lack of subject matter jurisdiction.’" Id.; See Fort Trumbull Conservancy, LLC v. Trumbull, 265 Conn. 423, 429, 829 A.2d 801 (2003) ("[a] court lacks discretion to consider the merits of a case over which it is without jurisdiction")." Redding Life Care, LLC v. Town of Redding, Superior Court, judicial district of New Britain at New Britain, Docket No. HHBCV13-6021904 (Sept. 25, 2019, Aronson, J.T.R.). "Whether an unretained expert privilege exists will be decided ..." Id.
Since the issuance of Millium v. New Milford Hosp., supra, 129 Conn.App. 81 and Millium v. New Milford Hospital, supra, 310 Conn. 711, the issue of whether the a plaintiff could elicit expert testimony from a treating physician has been discussed in several superior court decisions. In Lapierre v. Pareles, Superior Court, judicial District of Hartford, Complex Litigation Docket at Hartford, Docket No. X03HHDCV136046945S (May 31, 2017, Moll, J.) , the court had before it, were motions for protective order. One motion for protective order, filed by the defendants, Connecticut Multispecialty Group (CMG), Mahesh I. Patel, M.D., Emilio H. Pandika, M.D., Michael T. Lawlor, M.D., and Michael M. Conway, M.D., sought to preclude the plaintiff from eliciting expert testimony from party defendants. The second motion for protective order was filed by defendants Lawrence Pareles, M.D. and Cardiac Care Associates. After reviewing the parties’ submissions and arguments the court granted the motions.
Lapierre v. Pareles was a wrongful death action sounding in medical malpractice, which alleged facts, as recited by the trial court. The decedent was hospitalized at Hartford Hospital from July 25, 2011, through August 7, 2011, during which time she received treatment from the defendants. On July 25, 2011, the decedent was admitted to the hospital for complaints of chest pain and shortness of breath; she was found to have an abnormality on her electrocardiogram, a second degree heart block, and an elevated white blood count. She was seen by Dr. Patel, who wrote that there was no radiological evidence of pulmonary embolism, congestive heart failure, or pneumonia to account for her symptoms. The decedent was then seen by Dr. Pareles, who ordered that a transthoracic echocardiogram be performed. Such test occurred on July 26, 2011; the decedent’s artificial aortic valve could not be clearly seen. Dr. Pareles ruled out bacterial endocarditis. On July 26, 2011, Dr. Lawlor examined the decedent and ordered intravenous antibiotics to be started. On July 27, 2011, The decedent continued to have symptoms, including anxiety, trouble sleeping, an elevated white count, fever, chest pain, shortness of breath, and a decreasing heart rate. On July 28, 2011, Dr. Lawlor saw the decedent and, noting "no evidence of infection," discontinued the intravenous antibiotics. From July 25 to August 1, 2011, the decedent’s white count remained elevated, her chest pain was alleviated only by pain medication, and she remained short of breath. Drs. Lawlor, Pandika, Pareles, and Patel did not consider additional testing to rule out an infection of her heart. On August 1, 2011, Dr. Conway examined the decedent and ordered intravenous steroids and oral inhaled medications for asthmatic bronchitis. On August 2, 2011, the decedent continued to have an elevated white count and continued to exhibit signs of a worsening heart condition. None of the treating physicians considered that she might have a bacterial infection of her heart or artificial aortic valve.
On August 3, 2011, a pacemaker was implanted in the decedent’s heart. On August 4, 2011, Dr. Conway examined the decedent; his diagnosis for her continued chest pain, anxiety, shortness of breath, and elevated white count was asthmatic bronchitis. The decedent’s condition worsened over the following days. On August 7, 2011, the decedent passed away while a patient at the hospital. An autopsy revealed that the decedent died from an undiagnosed, acute bacterial endomyocarditis, an infection of her heart and artificial heart valve.
The plaintiff commenced her action setting forth three counts of negligence as follows: (1) count one, as to the CCA defendants; (2) count two, as to CMG and Drs. Pareles, Patel, Pandika, Conway, and Lawlor; and (3) count three, as to defendants HHC and Hartford Hospital.
During the deposition of Dr. Lawlor, plaintiff’s counsel engaged in questioning relating to causation and standard of care. The CMG defendants and CCA defendants filed their motions for protective orders. The plaintiff filed objections to both motions. The trial court summarized that the Lapierre v. Pareles motions sought to preclude the plaintiff from eliciting expert testimony from the decedent’s treating physicians, who, had not been disclosed as expert witnesses in the present case. (Emphasis added.) The CMG defendants’ motion sought a broad protective order that would encompass "the defendant physicians in this case, or other health care providers who have not been disclosed as expert witnesses." The CCA defendants’ motion limited the scope of the requested protective order to Dr. Pareles. The defendants argued that Connecticut law clearly provided that a physician cannot be compelled against his or her wishes to serve as an expert witness. The CMG defendants further contended that, because the plaintiff has already retained an expert, it would be unreasonable to require the defendant treating physicians in this case or other healthcare providers, who have not been disclosed as expert witnesses, to offer expert opinions without their consent.
The plaintiff argued, to the contrary, that Connecticut law permits a plaintiff to prove her case through the expert testimony of a defendant treating physician. The plaintiff further argued that the CCA defendants’ motion should be denied because it was over broad and vague. The Lapierre v. Pareles, supra, court agreed with the defendants that a defendant treating physician may not be compelled to provide expert testimony where such individual has not been disclosed as an expert witness by the defense and where such individual has not expressed an opinion in the patient’s medical records.
The Lapierre v. Pareles, court stated that "[a]s a threshold matter, ... there is no statutory or Practice Book provision, nor any appellate authority, on the specific question presented here, namely, whether a defendant treating physician- (1) who has not been disclosed by the defense as an expert witness, and (2) whose opinions of an expert nature do not appear in the patient’s medical records- may be compelled to provide expert opinions."
In Lapierre v. Pareles, supra, the parties discussed the applicability of the respective decisions in Milliun v. New Milford Hospital, supra, 129 Conn.App. 81. "In Milliun, a medical malpractice action in which the plaintiff had disclosed nonparty treating physicians as expert witnesses, the Appellate Court held that, because such physicians had expressed causation opinions in the patient’s medical records, such individuals could be compelled to testify at a deposition regarding such opinions. 129 Conn.App. at 108-09. On appeal from the judgment of the Appellate Court, the Supreme Court stated the following: ‘We underscore that the narrow issue that was raised in the present case is whether a treating physician can be compelled to testify as an expert regarding an opinion previously expressed by that physician. As we have explained, there is no need to resolve that question under the particular circumstances of this case.’ Lapierre v. Pareles, supra, quoting Milliun v. New Milford Hospital, supra, 310 Conn. 711. "The plaintiff has never claimed that she is entitled to compel expert opinion regarding matters on which [the plaintiff’s] treating physicians had expressed no opinion in their reports. Indeed, the Appellate Court’s opinion did not address that broader issue. Accordingly, we need not address that issue either." (Emphasis in original.) Milliun, 310 Conn. at 741. "Based on this clear language, the court finds Milliun to be inapposite. That is, the Supreme Court expressly stated that it was not addressing the very issue presented here, where there is no indication in the record that the treating physicians expressed standard of care and/or causation opinions in the decedent’s medical records." Lapierre v. Pareles, supra . The Lapierre v. Pareles, supra, court found there was a split of Superior Court authority on the issue in dispute. "[I]n Hill v. Lawrence & Memorial Hospital, No. X 04-HHD-CV4034622-S, 2008 WL 2802907, at *1 (Conn.Super. June 30, 2008) (Shapiro, J.) , the plaintiff’s disclosed non-party treating physicians as expert witnesses, despite the fact that those individuals did not consent to rendering opinion testimony. Those nonparty treating physicians moved for protective orders to preclude the plaintiffs from inquiring into damages or causation opinions. The court in Hill reasoned: ‘Here, where the movants were employed as treating physicians, and not as adversary experts, it does not follow that, they, in the normal course of events, would expect to be called upon as expert witnesses for the plaintiffs on causation and damages.’" Id., quoting Hill v. Lawrence & Memorial Hospital, No. X 04-HHD-CV4034622-S, 2008 WL 2802907, supra.
In Hill v. Lawrence & Memorial Hospital, supra, the court granted the motions and issued protective orders, stating: Counsel are prohibited from questioning the movants on the issues of opinion concerning damages or causation, as to whether, if the mass had been detected in November 2001, the decedent could have been treated and would have survived, as specified in the plaintiffs’ disclosure of expert witnesses as pertaining to them. They may be questioned as to factual matters related to their own conduct and treatment of the decedent. Id.
The court in Lapierre v. Pareles, found that similarly, in Baker v. Mongelluzzo, Superior Court, judicial district of Waterbury at Waterbury, No. UWY-CV12-6016555-S (Conn.Super. June 28, 2016) (Shapiro, J.), the court held that the defendant treating physician could "not be compelled to give standard of care opinion testimony regarding treatment by other health care providers. He may be questioned concerning opinions he already formulated, as expressed in medical records ... [II]e may be questioned about his care and treatment of the plaintiff ... and may be required to explain the reasons and basis for such care and treatment as related to the standard of care. He is not required to answer hypothetical questions which seek opinion testimony or regarding facts not known to him during his care of the plaintiff." Id.
In Lotring v. Doherty, Superior Court, judicial district of New London at New London, No. KNL-CV14-6022396S (Conn.Super. Jan. 28, 2016) (Vacchelli, J.), the court issued a similar protective order, precluding the plaintiff from asking the doctor questions about standard of care until such time as he is disclosed as an expert for the defense on such topic, or he otherwise voluntarily opined on the subject outside the scope of privilege for the reasons stated on the record. "Plaintiff may ask question[s] on all other of his opinions as appear in the medical records or that he has voluntarily expressed outside of the scope of privilege, and plaintiff may inquire on all facts." Id.
The court in Lapierre v. Pareles, supra, agreed with the decisions in Hill v. Lawrence & Memorial Hospital, supra, and Baker v. Mongelluzzo, which held that treating physicians may not be compelled to provide expert opinions involuntarily, absent an expression of such opinions in the patient’s medical records. First, it is well settled that "[a]n adversary can subpoena and force an expert witness retained and disclosed by the other side to disgorge an expert opinion at trial ... Except for that particular scenario, however, one cannot usually require an expert to appear and render an opinion, even if qualified to do so, if the expert refuses to offer the opinion voluntarily." Lapierre v. Pareles, supra, citing Thomaston v. Ives, 156 Conn. 166, 172-74 (1968).
Additionally, the Lapierre v. Pareles, court stated "that where a treating physician is offered to give expert testimony regarding standard of care and/or causation, he or she must be disclosed as an expert witness." Id.; See Practice Book § 13-4(b); Wyszomierski v. Siracusa, 290 Conn. 225, 235-36, 963 A.2d 943 (2009); Wright v. Hutt, 50 Conn.App. 439, 451, 718 A.2d 969 (1998). It is important to note that unlike the present case before this court, the defendant treating physicians in Lapierre v. Pareles, had not been disclosed as expert witnesses. (Emphasis added.) "The Supreme Court’s narrow decision in Town of Thomaston, 156 Conn. at 174, does not lead to a different conclusion. In contrast to the expert witness in that case (i.e., the appraiser to whom the Court perceived "no unfairness ... in requiring him to give the trier the benefit of his expert opinion"), the witnesses at issue in the present case are defendants. Although they necessarily have a duty to testify to factual matter within their knowledge, the court concludes, as a matter of fundamental fairness, they have no duty to assist the plaintiff, in satisfying her burden of proof, by providing expert opinions that have been neither disclosed in an expert disclosure pursuant to Practice Book § 13-4 nor expressed in the patient’s medical records." Lawrence v. Pareles, supra . (Emphasis added.)
The court in Lapierre v. Pareles, supra, specifically stated it was not creating a testimonial privilege for treating physicians. "[T]here is a distinction between the duty of a witness to testify to factual matter within his knowledge and the imposition of a requirement that he voice his opinion concerning a subject with which he is conversant as an expert. The court’s holding is strictly limited to the circumstances before it, namely, where the treating physicians have not been disclosed by the defense as expert witnesses and where there is no suggestion in the record that they have expressed opinions of an expert nature in the patient’s medical records. The treating physicians may not withhold testimony regarding their factual knowledge; nor may they withhold testimony of an expert nature in the event they are disclosed as expert witnesses by the defense. Thus, because the decision does not permit the withholding of factual matter within the witness’s knowledge, no testimonial privilege is created." Id.
In granting the motions for protective orders, Lapierre v. Pareles, supra, stated, "[i]n the absence of an expert witness disclosure, the defendant treating physicians may not be compelled to give causation and/or standard of care opinions regarding treatment by other providers or opinions that do not appear in the decedent’s medical records. Such treating physicians may be questioned as to their educational and professional background and experience, factual matters about their own care and treatment of the plaintiff’s decedent, and the reasons and basis for such care and treatment as related to the standard of care. Moreover, such defendant treating physicians are not required to answer hypothetical questions that solicit opinions or assume facts not known to the witness during his care of the plaintiff’s decedent." Id.
The case of LaVoie v. Manoharan, Superior Court, judicial district of New Britain at New Britain, Docket No. CV14-6027376 (Nov. 20, 2017, Swienton, J.) , also involves a medical malpractice action noting Millium v. New Milford Hosp., supra, 129 Conn.App. 108, as well as, discussing LaPierre v. Pareles, Superior Court, judicial district of Hartford (May 31, 2017) supra; 64 Conn.L.Rptr. 591.
The action was brought by the plaintiffs, against Dr. Manoharan, M.D., Bristol Hospital Multispecialty Group, Inc., (BHMG) and the Bristol Hospital. The plaintiffs claim that the defendant, Dr. Manoharan, an agent or employee of BHMG, was negligent in his suicide risk assessment of the decedent when he was a patient at Bristol Hospital. As a result, the plaintiffs claim that Dr. Manoharan improperly discharged the decedent, resulting in his suicide.
"The plaintiffs noticed the deposition of the defendant, Dr. Manoharan, for October 16, 2017. During the deposition, the plaintiffs posed questions to him relating to both the standard of care of psychiatry in general and with respect to his treatment of the decedent. Defense counsel objected to these questions, stating that Dr. Manoharan was testifying as a fact witness in this matter, had not been disclosed as an expert witness, and therefore, instructed him not to answer the questions. The parties agreed that the deposition would remain open in order to have both counsel file appropriate motions with the court for intervention and decision on the issue." LaVoie v. Manoharan, supra.
The court had two motions before it: (1) Plaintiffs’ motion for order re: the defendant, Dr. Manoharan, responding to questions at deposition regarding his treatment of plaintiffs’ decedent vis-a-vis the standard of care; and (2) the defendant, Dr. Manoharan’s, motion for protective order. The issue presented to the court was whether the plaintiffs in a medical malpractice action shall be permitted to ask the defendant treating physician his understanding of the standard of care related to the treatment at issue, and whether his treatment of the plaintiffs’ decedent complied therewith. Dr. Manoharan had not been disclosed as an expert in the case. The plaintiffs had disclosed three separate expert witnesses, all of whom were expected to testify regarding the applicable standard of care and causation issues.
The Lavoie court stated "[t]here is no dispute that a plaintiff may prove standard of care and causation through the testimony of a defendant at trial in order to prove the plaintiff’s case alleging professional negligence. Gimme v. Goldberg, 31 Conn.App. 527, 540-41, 626 A.2d 318 (1993); Snyder v. Pantaleo, 143 Conn. 290, 294, 122 A.2d 21 (1956). However, in these instances, the defendant treating physician has either offered his expert testimony without objection or has been disclosed as an expert in the case. Furthermore, there is also little dispute that if a defendant treating physician’s opinions are contained in the medical records, he may be compelled to testify at a deposition as to those opinions and the statement made therein. Millium v. New Milford Hosp., supra, 129 Conn.App. 108, 20 A.3d 36 (2011)." Id.
Judge Swienton in LaVoie v. Manoharan, noted in LaPierre v. Pareles, supra, the court was presented with this similar issue of whether the plaintiff could elicit expert testimony from a party defendant treating physician when he has not been disclosed as an expert witness. (Emphasis added.) "Contrary to the plaintiffs’ reading and interpretation of the decision, the court in LaPierre held that the defendant treating physician was not compelled to provide expert testimony where he had not been disclosed as an expert witness by the defense, and where his opinions were not contained in the patient’s medical records." LaVoie v. Manoharan, supra . "Although [the defendant treating physicians] necessarily have a duty to testify to factual matter [sic] within their knowledge, the court concludes, as a matter of fundamental fairness, [they] have no duty to assist the plaintiff, in satisfying her burden of proof, by providing expert opinions that have been neither disclosed in an expert disclosure pursuant to Practice Book § 13-4 nor expressed in the patient’s medical records." LaPierre v. Pareles, supra . "The court concluded that in the absence of an expert witness disclosure, the defendant treating physician may not be compelled to give causation and/or standard of care opinions regarding treatment by other providers or opinions that do not appear in the medical records. LaVoie v. Manoharan, supra; See also, Baker v. Mongelluzo, Superior Court, judicial district of Waterbury, Docket No. CV 12-60165555 (June 28, 2016) ; Lotring v. Doherty, Superior Court, judicial district of New London, Docket No. CV 14 6022396 (January 28, 2016); and Hill v. Lawrence & Memorial Hosp., Superior Court, judicial district of Hartford, Docket No. CV 4034622 (June 30, 2008) .
The court in LaVoie v. Manoharan, supra ., agreed that an adversary can subpoena and force an expert witness retained and disclosed by the other side to disgorge an expert opinion at trial. However, the LaVoie court found that except for that particular scenario, one cannot usually require an expert to appear and render an opinion, even if qualified to do so, if the expert refuses to offer the opinion voluntarily. Id., citing, Thomaston v. Ives, 156 Conn. 166, 172-74 (1968); see also Drown v. Markowitz, Superior Court, judicial district of Hartford, Docket No. CV 05 4010740 (August 18, 2006) (41 Conn.L.Rprt. 855) (where the defendant treating physician was not disclosed as an expert witness, did not consent to be an expert witness for the plaintiff, and the court did not allow questioning of a defendant treating physician as to standard of care regarding other health care providers who rendered care and treatment, but did allow standard of care questions about her own conduct. "Plaintiff may question [the defendant doctor] regarding her preparation of the discharge summary of the plaintiff’s decedent. She may also be questioned as to what facts she knows of the conduct of others. However, this questioning is limited to facts that she knows, and she may not be asked her opinions as to those facts or standard of care of anyone except herself").
Unlike LaPierre v. Pareles, supra, and LaVoie v. Manoharan, supra, there is no dispute the plaintiff has filed an expert disclosure form listing more than fifty health care providers, including Dr. Garvey. The plaintiff’s disclosure states that these listed individuals "may offer expert opinions and/or testimony in accordance with the produced medical records and reports of care and treatment rendered to the deceased plaintiff, John Ostrowski." The disclosure does not set forth the substance of any opinions of these non-retained non-party witnesses that are contained in the produced records and reports and the records and reports are not before the court for review.
While, the plaintiff in the present case has disclosed more than fifty expert witnesses, there is no dispute that they are all non-parties and have not been retained by the plaintiff. As of this moment, they are also non-voluntary expert witnesses. The Plaintiff may ask question[s] on all rendered by qualified listed expert witnesses opinions as they may appear in the medical records or that the expert has voluntarily expressed outside of the scope of privilege, and the plaintiff may inquire on all facts. In accordance with Practice Book § 13-4(2), the witnesses "shall be permitted to offer expert opinion testimony at trial as to any opinion as to which fair notice is given in the disclosed medical records or reports. Expert testimony regarding any opinion as to which fair notice is not given in the disclosed medical records or reports must be disclosed in accordance with subdivision (1) of subsection (b) of this section." See. Practice Book § 13-4. Accordingly, if the plaintiff feels the disclosed treaters have rendered opinions in the medical records, the plaintiff is obliged to disclose those opinions and where in the records these opinions appear prior to any deposition of a witness.
The court agrees with the Superior Court decisions which hold that treating physicians may not be compelled to provide expert opinions involuntarily, absent an expression of such opinions in the patient’s records. First, in order for a treating physician to offer expert testimony regarding standard of care and/or causation, he must be disclosed as an expert witness. See Practice Book § 13-4(b). Second, as in the conclusion reached in Hill v. Lawrence & Memorial Hospital, supra, there appears to be no compelling need for the testimony of Dr. Garvey or the other disclosed witnesses. The plaintiff has disclosed Dr. Gordon regarding the standard of care and causation as it relates to a general surgeon. No prejudice will be suffered by the plaintiff by the preclusion of Dr. Garvey and the disclosed witnesses providing expert testimony without their permission and against their will. Hill v. Lawrence & Memorial Hospital, supra.
This decision should not be interpreted as creating a wholesale testimonial privilege. In a situation such as this where a party seeks to offer an expert’s reports or records into evidence it would be not be proper for the court to assist in precluding the deposition of that expert. Milliun v. New Milford Hosp., supra, 129 Conn.App. 81, 106. "Although we do not hold that a person may be compelled to offer expert testimony in a case simply because he is an expert in a particular field that does not mean that a treating physician cannot be compelled to testify at a deposition as to opinions documented in his medical records and the statements made therein. Id., 108. This court declines to create a testimonial privilege that would prevent such witnesses from being deposed in the present case. Id., 109.
At any deposition, the treating physicians may not be compelled to give standard of care and/or causation opinions regarding treatment of the plaintiffs’ decedent or opinions that do not already appear in the decedent’s medical records. The witnesses cannot be compelled to provide expert opinion testimony regarding the standard of care, but they be questioned about the facts and circumstances of their treatment of the plaintiffs’ decedent. The court orders that the questioning of disclosed expert witnesses be limited to the facts of: (1) their education, training, and experience; (2) their care and treatment of the decedent; (3) the reasons and basis for such care and treatment; and (4) any opinions documented in the medical records and the statements made therein. Furthermore, they are not required to answer hypothetical questions which seek opinion testimony or regarding facts not known to them during their care and treatment of the plaintiffs’ decedent. The trial court will ultimately make its rulings about the admissibility of any evidence that develops as a result of any depositions.
Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the judicial authority; (6) that a deposition after being sealed be opened only by order of the judicial authority; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the judicial authority; (9) specified terms and conditions relating to the discovery of electronically stored information including the allocation of expense of the discovery of electronically stored information, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.
(a) A party shall disclose each person who may be called by that party to testify as an expert witness at trial, and all documents that may be offered in evidence in lieu of such expert testimony, in accordance with this section. The requirements of Section 13-15 shall apply to disclosures made under this section.
(b) A party shall file with the court and serve upon counsel a disclosure of expert witnesses which identifies the name, address and employer of each person who may be called by that party to testify as an expert witness at trial, whether through live testimony or by deposition. In addition, the disclosure shall include the following information:
(1) Except as provided in subdivision (2) of this subsection, the field of expertise and the subject matter on which the witness is expected to offer expert testimony; the expert opinions to which the witness is expected to testify; the substance of the grounds for each such expert opinion; and the written report of the expert witness, if any. The report shall not be filed with the court. Disclosure of the information required under this subsection may be made by making reference in the disclosure to the written report of the expert witness containing such information.
(2) If the witness to be disclosed hereunder is a health care provider who rendered care or treatment to the plaintiff, and the opinions to be offered hereunder are based upon that provider’s care or treatment, then the disclosure obligations under this section may be satisfied by disclosure to the parties of the medical records and reports of such care or treatment. A witness disclosed under this subsection shall be permitted to offer expert opinion testimony at trial as to any opinion as to which fair notice is given in the disclosed medical records or reports. Expert testimony regarding any opinion as to which fair notice is not given in the disclosed medical records or reports must be disclosed in accordance with subdivision (1) of subsection (b) of this section. The parties shall not file the disclosed medical records or disclosed medical reports with the court.
(3) Except for an expert witness who is a health care provider who rendered care or treatment to the plaintiff, or unless otherwise ordered by the judicial authority or agreed upon by the parties, the party disclosing an expert witness shall, upon the request of an opposing party, produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case within fourteen days prior to that expert’s deposition or within such other time frame determined in accordance with the Schedule for Expert Discovery prepared pursuant to subsection (g) of this section. If any such materials have already been produced to the other parties in the case, then a list of such materials, made with sufficient particularity that the materials can be easily identified by the parties, shall satisfy the production requirement hereunder with respect to those materials. If an expert witness otherwise subject to this subsection is not being compensated in that capacity by or on behalf of the disclosing party, then that party may give written notice of that fact in satisfaction of the obligations imposed by this subsection. If such notice is provided, then it shall be the duty of the party seeking to depose such expert witness to obtain the production of the requested materials by subpoena or other lawful means.(c)(1) Unless otherwise ordered by the judicial authority upon motion, a party may take the deposition of any expert witness disclosed pursuant to subsection (b) of this section in the manner prescribed in Section 13-26 et seq. governing deposition procedure generally. Nothing contained in subsection (b) of this section shall impair the right of any party from exercising that party’s rights under the rules of practice to subpoena or to request production of any materials, to the extent otherwise discoverable, in addition to those produced under subsection (b) of this section, in connection with the deposition of any expert witness, nor shall anything contained herein impair the right of a party to raise any objections to any request for production of documents sought hereunder to the extent that a claim of privilege exists.
Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the judicial authority; (6) that a deposition after being sealed be opened only by order of the judicial authority; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the judicial authority; (9) specified terms and conditions relating to the discovery of electronically stored information including the allocation of expense of the discovery of electronically stored information, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.