Opinion
13-P-808
10-15-2014
DAVID McELWEE & another v. STEPHEN J. ROSENMAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, David McElwee and Diane McElwee, appeal from the judgment dismissing their medical malpractice complaint, challenging the allowance of the defendant's motion to preclude the plaintiffs' expert from testifying and the denial of the plaintiffs' emergency motion to continue the trial.
The plaintiffs filed their complaint in 2008. In 2012, about one month before the scheduled trial and long after the time to designate experts had passed, the plaintiffs informed the defendant that their designated medical expert would not be able to testify because of infirmity and age. Trial was continued on the plaintiffs' motion, to a date some seven months later. The plaintiffs immediately designated another expert but never disclosed the nature of her expected testimony. About one month before the rescheduled trial date, the plaintiffs designated a different expert and disclosed that third expert's expected testimony, at the same time informing the defendant that the second designated expert would not testify. The defendant moved to preclude testimony from the third expert. After a hearing, the motion judge entered an order precluding the third expert from testifying because the designation and disclosure were untimely.
At the hearing the judge also heard argument on an emergency motion by the plaintiffs to continue the trial, but he did not issue a ruling on that motion.
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A judge has broad discretion with regard to the decision to exclude expert testimony and we will not disturb the ruling unless there has been an abuse of that discretion. Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131-132 (2002). When the decision to preclude the expert from testifying is viewed in the context of the procedural history of this case, which includes delays and failures of disclosure, it is readily apparent that the judge did not abuse his discretion.
Subsequently, the plaintiffs filed an emergency motion to continue the trial. The defendant opposed continuance and also filed a motion to dismiss, generally contending that absent expert testimony the plaintiffs could not sustain their claims. After a hearing before a different judge, at which the plaintiffs conceded they could not prove their claims without calling an expert witness, the judge denied the plaintiffs' emergency motion to continue and allowed the defendant's motion to dismiss. The plaintiffs do not challenge the rationale for allowing the motion to dismiss, but claim that the second judge abused his discretion by denying their emergency motion to continue. Again, when that motion is considered in the context of the procedural history of this case, it is readily apparent that the second judge did not abuse his discretion. See the memorandum of decision and order of the second judge at pages 172 to 173 of the record appendix.
Judgment affirmed.
By the Court (Cypher, Grasso & Fecteau, JJ.),
Clerk Entered: October 15, 2014.