There is always that scene in any courtroom movie. You know the scene. Atticus asks the sheriff to describe the
injuries on the throat of Mayella. “They
were made by a left-handed man.” Tom,
stand up and catch this ball in your left hand.
“I can’t do that, sir.” Why
not? “I can’t move my left arm since I
got it caught in a cotton gin.”
This kind of thing makes for great drama. It also has nothing to do with law as it is practiced. Step into a courtroom today, there are no
surprise witnesses, surprise theories, or surprise testimony. The only surprise most civilians have is how
boring the whole thing is. When the
lawyers enter at the start of trial, they know what the other side is going to
argue and what the witnesses are going to say (more or less). In court, there are no surprises, only well
(and not-so-well) choreographed executions of planned testimony, exhibits, and
reports.
This shift is due entirely to the rules of discovery. For those just joining the game, these are
found within the rules of civil procedure and basically allow each side—through
a series of interrogatories, depositions, requests to admit, and other
disclosures—to trade relevant facts and expected testimony. The idea is that a trial should not be
conducted by ambush. When the parties
get to trial, they should have had a fair chance to learn what information the
other is holding (good and bad) and present the widest possible evidence and
testimony because that will encourage the parties to reach the truth of the
matter, rather than hiding it.
Or so they say.
In reality, discovery is a long, difficult process that has
its own games. Today’s case concerns one
type, the expert interrogatory and disclosure.
Let’s look at the facts.
Defendant performed weight-loss surgery on patient on May 2, 2007. Following the surgery, patient was sent to a
rehabilitation center. On May 22,
Defendant noticed some drainage and minor wound infection.
On June 1, patient was discharged to a nursing home in
Rutland to continue rehabilitation. The
infection continued as well, and patient’s primary care physician ordered a
culture. From this the physician learned
that it was a staph infection which is serious and difficult to treat. Physician prescribed antibiotics, and patient
was discharged on June 4. On June 26,
patient saw her physician who examined the infection site and found it to be
improving.
At the end of July, Defendant saw patient again, and noticed
that the wound was draining again.
Defendant ordered exploration and excavation of the wound for August
13.
On August 8, patient suffered a pulmonary embolism and was
hospitalized in Rutland. She was
discharged at the end of the month.
Twice in September, patient saw her physician about problems with her
wound. By this time, the physician found
that the Staph infection had migrated to patient’s heart valves. There was little more physician could do, and
patient died of sepsis in November.
Plaintiff is patient’s next of kin, and he brought the
present malpractice action against Defendant for failing to identify the staph
infection, for failing to treat the infection with antibiotics, and for
preventing patient’s primary care physician from doing the same.
In other word, Plaintiff brought a medical malpractice claim
against Defendant for the wrongful death of patient.
The first thing to know about a medical malpractice claim is
that it is almost always dependent on expert witness testimony. From the facts above, it would be difficult,
if not impossible, for any of us to understand, let alone, assign blame for
patient’s death. This is because we are
dealing with at least one surgery, a persistent bacterial infection that may or
may not have started at Defendant’s hospital, overlapping physicians, and an
individual who may or may not have a complicated medical history. It would take a doctor or similarly educated
individual to parse through the various facts and apply his or her knowledge
and medical background to explain with any authority who was to blame for what
acts or omissions, and why.
Because these cases are so dependent on expert witnesses,
discovery becomes that much more important.
An expert witness is an unknown element.
She is just someone who has been hired to state an opinion. “I was not there, I never met the patient,
but from reading the file, this is what went wrong and this is how the
defendant caused it.”
Given the complicated and extended timeframe in this case,
Defendant wanted to know how Plaintiff’s expert witness was going to assign
fault to her (because let’s be honest expert witnesses always find a way to
conclude that the other side caused the harm at issue—otherwise they are not
disclosed as expert witnesses). Enter
Rule 26(b), which governs initial disclosures of expert witnesses. Rule 26 requires the party retaining an
expert witness to, upon request, to
- Identify each person whom
the other party expects to call as an expert witness at trial,
- State the subject matter
on which the expert is expected to testify, and
- State the substance of the
facts and opinions as to which the expert is expected to testify and a summary
of the grounds for each opinion.
This seems fairly easy, but there is a game here. Plaintiff does not want to disclose too much
of the expert witness’s opinion because the more the expert talks and
discloses, the better the chance that Defendant will find a contradiction, have
time to prepare a rebuttal, or lock the expert into a particular theory that
proves flawed.
This is the game. A
plaintiff is usually still developing the case during discovery. Reveal too much, and you will find yourself
outflanked or boxed into a corner.
Yet, the stakes are high.
Reveal too little, and you risk sanctions from the court for violating
the discovery rules.
To make it even harder, compliance with discovery rules is
largely subjective and left to the discretion of the trial court. This means one judge’s compliance is
another’s unresponsive contempt.
Now that the table is set, there is little left to do but
eat.
Plaintiff, after a motion to compel revealed that he was
retaining the patient’s primary care physician as an expert witness. Plaintiff also revealed that the physician
believed that Defendant’s failure to prescribe antibiotics and her orders
preventing him from doing the same constituted a breach in the standard of care
owed to the patient and caused the patient’s untimely death.
Defendant had a few follow up questions.
- What does the expert claim
that Defendant should have done, and when?
- What information does he
claim she had about his patient’s infection?
- Why was Defendant’s refusal
(if in fact there was a refusal) to treat patient binding on the expert (who
was also patient’s primary care physician) and the other Rutland
physicians, including the surgeon who operated on patient?
- What would the allegedly
omitted action have done to avert patient’s sepsis?
- What specific other
persons at the hospital does expert claim were in violation of the
standard of care?
- What specifically did they
do wrong?
- What should those persons
have done?
These are all reasonable questions designed and intended to
get Plaintiff’s expert to be more specific and clear about his theory of fault
and causation. The problem is whether
Rule 26(b) really required Plaintiff to disclose this information at the
initial interrogatory phase.
The trial court ruled that it did, and when Plaintiff did
not substantially comply after several orders, the trial court imposed
sanctions and precluded Plaintiff from presenting testimony at trial about
these areas that he had not disclosed.
This effectively thwarted Plaintiff’s ability to present an expert
witness and by extension, his case.
On appeal, Plaintiff argues that he did substantially comply
with Rule 26(b) and that the additional information was follow up information
that would have been more appropriate for a deposition. Plaintiff also argued that the discovery
sanction was too harsh and effectively dismissed his case without the requisite
findings of bad faith or willful disregard of the rules of discovery.
The SCOV splits in its response to this case. The majority upholds the trial court, and the
dissent does not. But the difference
between the two decisions rests primarily upon perception.
Strap on your Sartrean specs. It’s gets a little subjective ahead.
For the majority, the issue is one of fair disclosure. While Rule 26(b) does not require an expert
to disclose every corner of her opinion, it does require a fair description of
what the expert is going to say. For
example, later section of Rule 26 (b)(A) exempts the expert’s drafts,
communications with the attorney, and similar in-process and development
documents. Nevertheless, the point of
the rule is to give the other party fair notice of the expert’s opinion in
sufficient detail so that the other side can make a reasonable determination of
whether they do or do not need to depose the expert.
The majority agrees with the trial court that Plaintiff’s
disclosure was insufficient based on the complexity of the case and the sparse
disclosure. The follow up questions were
reasonable attempts to flush out the experts opinion to a degree sufficient to
establish exactly why Defendant was to blame and who else, other than
Defendant, might have contributed to the harm.
In this light, Plaintiff’s repeated refusal to comply with the requests
was unreasonable and warranted the sanctions.
Again, the majority notes that while others might view this
situation differently, discretion lies with the trial court. In the end the majority finds that the
specific facts of this case and the trial court’s response fit within this wide
swath of discretion.
For Justice Robinson, joined by Justice Dooley, the case is
very different. The dissent sees this as
an issue of timing. To the dissenters,
the Defendant’s questions, however ultimately proper, are follow-up questions
intended to flush out the expert’s opinion that go beyond the obligations of
Rule 26(b).
In this light, the trial court exceeded its discretion and
forced Plaintiffs to disclose more than what Rule 26(b) obligated them.
Like the majority, the dissent cites to a number discovery
decisions from various federal courts, which from 1970 to 1993 had the exact
same language in its Rule 26(b). The
problem for both sides is that these decisions, like this case, are largely
fact-specific exercises in discretion. As
persuasive as one case may be, the other side can always marginalize it by
noting the factual and circumstantial differences.
This is a mistake many advocates make when trying to
distinguish between prior cases.
Sometimes the different factual postures of a case are critical and will
distinguish it from future decisions, but a lot of the time, it does not.
“Your honor, I agree that the case stands for the principle
that a car running a red light is liable for the accident it causes, but that
case involved a red car, and your honor, my client’s car is orange,”
But here, Rule 26(b) invites these kinds of arguments. The general language of the Rule, along with
its broadly expressed principles, and standard of broad discretion invite
nuanced decisions that rest less on principle than on specific circumstances.
This is to say that neither the dissent nor the majority
holds a trump card in its analysis, and the end result rests more on the fact
that three out of five justices saw it one way.
The only other remaining issue is the nature of the
sanctions. The majority notes that it
has permitted discovery sanctions that have had the ultimate effect of
dismissing a case without findings of bad faith or willful disregard. The dissent finds the sanction to exceed the alleged
discovery crime and would reverse for abuse of discretion. The majority, being the majority, prevails.
So Plaintiff loses his one chance to hold Defendant liable
for his next-of-kin’s untimely death.
This may seem like a harsh outcome for what is essentially a paper
fight, but that is the nature of the game.
If Plaintiff had prevailed, he might have been entitled to a
million-dollar verdict. When the stakes
are high, the rules are tight.
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