Monday, July 1, 2013

Discovery and the Undisclosed


Stella v. Spaulding, 2013 VT 8

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

  1. Identify each person whom the other party expects to call as an expert witness at trial,
  2. State the subject matter on which the expert is expected to testify, and
  3. 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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