Vitali v. Southern New England Ear, Nose, Throat & Facial Plastic Surgery Group, LLP ( 2014 )

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ELAINE VITALI v. SOUTHERN NEW ENGLAND EAR,
NOSE, THROAT AND FACIAL PLASTIC SURGERY
GROUP, LLP, ET AL.
(AC 35435)
Gruendel, Keller and Pellegrino, Js.
Argued September 11—officially released November 25, 2014
(Appeal from Superior Court, judicial district of New
Haven, Lager, J.)
Carey B. Reilly, with whom, on the brief, were Cyn-
thia Bott and James D. Horwitz, for the appellant
(plaintiff).
Ellen M. Costello, for the appellees (defendants).
Opinion
GRUENDEL, J. The plaintiff, Elaine Vitali, appeals
from the judgment of the trial court rendered after
the jury returned a verdict in favor of the defendants,
Southern New England Ear, Nose, Throat & Facial Plas-
tic Surgery Group, LLP (Southern New England) and
Paul L. Fortgang. On appeal, the plaintiff claims that the
trial court improperly allowed the defendants’ expert
witness to express opinions that were beyond the scope
of what had been previously disclosed to the plaintiff,
in violation of Practice Book (2008) § 13-4 (4).1 We
disagree and affirm the judgment of the trial court.
The underlying facts giving rise to this appeal are
largely undisputed. On May 10, 2006, the plaintiff under-
went facial surgery to remove a benign tumor in her
right parotid gland. The surgery was performed by Fort-
gang, an otolaryngologist at Southern New England.
During the surgical procedure, Fortgang transected the
facial nerve and then later repaired it. The plaintiff
alleged in the complaint that, as a result of the proce-
dure, she suffered, inter alia, an impairment to the facial
nerve resulting in a limited ability to control the muscles
in her face.2
The plaintiff filed a negligence action against South-
ern New England and Fortgang in 2008. In the operative
complaint, the plaintiff alleged that Fortgang had
breached his duty of care under the theory that he had,
inter alia, failed to properly identify and protect the
facial nerve during the procedure. The plaintiff further
alleged that the breach was the proximate cause of her
injuries. The case proceeded to trial in November, 2012,
and featured a battle of opposing expert witnesses. The
plaintiff presented the testimony of James Lucarini, an
otolaryngologist, while the defendants countered with
the testimony of Dale Rice, also an otolaryngologist.
Lucarini testified, on the basis of his medical expertise,
that Fortgang breached the professional standard of
care and that the plaintiff’s injuries were the proximate
cause of that breach. Rice, on the other hand, testified
that transection of the facial nerve was an unavoidable
risk of the procedure and that Fortgang had not deviated
from the professional standard of care. During the
defendants’ direct examination of Rice, the plaintiff
objected to several questions on the basis that these
questions would elicit opinion testimony that was
beyond the scope of the prior disclosure required under
Practice Book § 13-4 (4). The court overruled the objec-
tions and allowed Rice’s testimony. On November 19,
2012, the trial concluded, with the jury returning a gen-
eral verdict in favor of the defendants.3
On November 27, 2012, the plaintiff filed a motion to
set aside the verdict and a motion for a new trial. In
support of these motions, the plaintiff again asserted
that the court had improperly allowed Rice to testify
to opinions that had not been previously disclosed in
either the defendants’ witness disclosure statement or
during Rice’s deposition. Specifically, the plaintiff cited
eight questions asked by the defendant’s counsel on
direct examination of Rice that, the plaintiff alleged,
amounted to an unfair surprise and a violation under
Practice Book § 13-4 (4).4 On January 25, 2013, the court
denied both motions on the grounds that the questions
asked of Rice were ‘‘encompassed within the scope of
an adequate § 13-4 (4) disclosure’’ and were permissible
‘‘even if the answers [had] not been fleshed out by
opposing counsel at a deposition or otherwise.’’ This
appeal followed.
As a preliminary matter, we set forth the appropriate
standard of review for determining whether the court
properly overruled the objections to Rice’s expert testi-
mony. ‘‘[T]he trial court has wide discretion in ruling
on the admissibility of expert testimony and, unless
that discretion has been abused or the ruling involves a
clear misconception of the law, the trial court’s decision
will not be disturbed. . . . In determining whether
there has been an abuse of discretion, the ultimate issue
is whether the court could reasonably conclude as it
did. . . . Even if a court has acted improperly in con-
nection with the introduction of evidence, reversal of
a judgment is not necessarily mandated because there
must not only be an evidentiary [impropriety], there
also must be harm.’’ (Internal quotation marks omitted.)
Doyle v. Kamm, 133 Conn. App. 25, 30, 35 A.3d 308
(2012). Under an abuse of discretion standard, a court’s
decision ‘‘must be legally sound and there must be an
honest attempt . . . to do what is right and equitable
under the circumstances of the law, without the dictates
of whim or caprice.’’ (Internal quotation marks omit-
ted.) Sullivan v. Yale-New Haven Hospital, Inc., 64
Conn. App. 750, 754, 785 A.2d 588 (2001).
The plaintiff claims that the court abused its discre-
tion by allowing Rice to testify to opinions that were
beyond the scope of the expert disclosure, and that the
alleged error was harmful. We disagree.
We begin by recognizing the well accepted principle
that the preclusion of expert testimony is a sanction,
and that the decision to impose sanctions rests solely
in the discretion of the court. Vitone v. Waterbury Hos-
pital, 88 Conn. App. 347, 357, 869 A.2d 672 (2005); Cac-
cavale v. Hospital of St. Raphael, 14 Conn. App. 504,
507, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d
1107 (1988); Kemp v. Ellington Purchasing Corp., 9
Conn. App. 400, 404, 519 A.2d 95 (1986); Zimny v. Coo-
per-Jarrett, Inc., 8 Conn. App. 407, 427, 513 A.2d 1235,
cert. denied, 201 Conn. 811, 516 A.2d 887 (1986); Perez
v. Mount Sinai Hospital, 7 Conn. App. 514, 519, 509
A.2d 552 (1986). In reviewing the court’s decision, every
reasonable presumption will be made in favor of its
correctness. Vitone v. Waterbury Hospital, supra, 357.
The court is not required to preclude expert testimony
when there is a discrepancy between the previously
disclosed subject matter of an expert witness’ testimony
and the proffered testimony at trial. Kemp v. Ellington
Purchasing Corp., supra, 405. It is only required to
exercise its discretion in deciding whether to impose
the sanction of preclusion, impose a lesser sanction, or
impose no sanction at all. Id. ‘‘That is a decision left to
the trial court’s best judgment, subject on appeal only
to the test of abuse of discretion.’’ Id.
Reviewing the present case under this standard, it is
readily apparent that the court acted well within its
discretion when it allowed Rice’s testimony. On Novem-
ber 16, 2012, the plaintiff objected to a question asking
Rice whether Fortgang deviated from the standard of
care. In response, the court granted the plaintiff’s coun-
sel the opportunity to be heard, removing the jury from
the courtroom in order to address the issue. The court
then heard arguments from the plaintiff’s and the defen-
dant’s counsel, while also reviewing the transcript of
Rice’s deposition. After weighing all of the evidence
before it, the court determined that the expert disclo-
sure under Practice Book § 13-4 (4) had sufficiently
covered Rice’s expert testimony and therefore the plain-
tiff’s objection was overruled. Even if the court had
found a discrepancy between the testimony and the
disclosure, however, it was still not obligated to pre-
clude the testimony. Kemp v. Ellington Purchasing
Corp., supra, 9 Conn. App. 405. As a result, the court
did not abuse its discretion when it allowed Rice’s tes-
timony.
The trial court determined that the plaintiff did not
meet her burden of showing how the admission of the
challenged testimony was inconsistent with the Prac-
tice Book or our case law. At trial, the plaintiff argued
that Rice’s testimony included opinions separate and
distinct from what had been previously disclosed. The
court disagreed, stating that the testimony had been
adequately disclosed prior to trial.5 We now consider
the propriety of that determination.
We begin with the disclosure requirements of Prac-
tice Book § 13-4 (4). Section 13-4 (4) requires the disclo-
sure of ‘‘(1) the name of the expert witness; (2) the
subject matter on which the expert is expected to tes-
tify; (3) the substance of the facts and opinions to which
the expert is expected to testify; and (4) a summary of
the grounds for each opinion.’’ Wexler v. DeMaio, 280
Conn. 168, 180, 905 A.2d 1196 (2006). A disclosure satis-
fies the requirements of this section when it alerts the
opposing party as to the basic nature of the party’s
claim. Klein v. Norwalk Hospital, 299 Conn. 241, 252–
53, 9 A.3d 364 (2010) (‘‘[t]his court never has articulated
a requirement that a disclosure include an exhaustive
list of each specific topic or condition to which an
expert might testify as the basis for his diagnosis; dis-
closing a categorical topic such as ‘causation’ generally
is sufficient to indicate that testimony may encompass
those issues’’). The purpose of a disclosure is to allow
the opposing party the opportunity to prepare his or
her case and to eliminate unfair surprise by revealing
the essential elements of the party’s claim. Wexler v.
DeMaio, supra, 188. Expert witness disclosure is ‘‘not
intended to elicit an overly detailed exposition of the
expert’s opinion.’’ (Internal quotation marks omitted.)
Id., 189. In summary, ‘‘a disclosure fails to comply with
§ 13-4 (4) only when the disclosure fails to apprise the
defendant of the basic details of the plaintiff’s claim.’’
(Emphasis added.) Id., 187.
A review of the record supports the court’s conclu-
sion that the subject matter and substance of the chal-
lenged testimony was properly disclosed prior to the
trial. On April 5, 2012, the defendants filed an expert
disclosure form, revealing the scope of Rice’s proposed
testimony at trial.6 The disclosure explicitly stated that
Rice was expected to testify that, in his professional
opinion, Fortgang had not breached the standard of
care during the procedure. Section II of the disclosure
stated: ‘‘Dr. Rice . . . will testify regarding the surgical
aspects of this case. He will testify regarding . . . stan-
dard of care issues.’’ Moreover, section III of the disclo-
sure provided further detail. It provided in relevant part:
‘‘Dr. Rice will testify that Dr. Fortgang did not deviate
from the standard of care nor did he proximately cause
this patient any injury or damages. In his opinion, Dr.
Fortgang met the standard of care in his care and treat-
ment of the plaintiff.’’ The disclosure also revealed that
Rice would discuss several specific actions taken by
Fortgang during the procedure and opine as to why
those actions were consistent with the standard of care.
Finally, the disclosure explicitly stated that Rice ‘‘will
refute the criticisms of the plaintiff’s experts and the
allegations listed in the plaintiff’s complaint.’’ After this
disclosure was filed, plaintiff’s counsel had an opportu-
nity to depose Rice, as provided by Practice Book § 13-
4 (4),7 and, on October 19, 2012, the plaintiff conducted
an approximately two hour deposition of Rice.
Under these facts, the court did not abuse its discre-
tion when it allowed Rice’s testimony. The plaintiff spe-
cifically challenges six questions on appeal, all of which
relate to the standard of care. The first question asked
Rice to directly refute the opinion of Lucarini,8 which
was properly covered by the portion of the disclosure
that stated Rice ‘‘will refute the claims of plaintiff’s
experts.’’ The second, fifth, and sixth questions can
be summarized as requesting Rice to confirm that (1)
Fortgang took every precaution possible,9 (2) he ruled
out alternative measures,10 and (3) he had, at all times,
complied with the standard of care.11 In other words,
Rice was being asked whether Fortgang had complied
with the standard of care, which was covered in the
sections of the disclosure that stated, ‘‘[Rice] will testify
regarding . . . standard of care issues,’’ and ‘‘Rice will
testify that Dr. Fortgang did not deviate from the stan-
dard of care . . . .’’ Finally, questions three and four
are questions regarding Fortgang’s decision to cut,12 and
his inability to identify,13 the facial nerve. This subject
matter was properly divulged in the portion of the dis-
closure statement that stated, ‘‘[Rice] will testify about
how this surgery is performed, and how it was per-
formed by Dr. Fortgang and how the nerve was identi-
fied.’’ The challenged testimony was directly
encompassed within the expert disclosure and the
plaintiff’s argument that the basic details or essential
elements of Rice’s testimony had not been disclosed
fails. As a result, we cannot conclude that the court
abused its discretion in allowing the testimony at trial.
Furthermore, the present case is readily distinguish-
able from two cases relied upon by the plaintiff, Kemp
v. Ellington Purchasing Corp., supra, 9 Conn. App. 400,
and Sturdivant v. Yale-New Haven Hospital, 2 Conn.
App. 103, 476 A.2d 1074 (1984). In Kemp, this court
upheld the trial court’s preclusion of expert testimony
on the issue of constructive notice of a dangerous condi-
tion when the prior expert disclosure had explicitly
stated that testimony would be limited to the issue of
causation. Kemp v. Ellington Purchasing Corp., supra,
401–402. In Sturdivant, this court upheld the trial
court’s preclusion of expert testimony on the issue of
causation when the prior disclosure revealed that testi-
mony would be limited to standard of care issues and
departures therefrom. Sturdivant v. Yale-New Haven
Hospital, supra, 104–105, 108. In the present case, the
disclosure provided no such limitations. Rice’s disclo-
sure form and deposition testimony clearly indicated
that his expected testimony would include issues of
standard of care, breach, and proximate cause.14
In conclusion, the court did not abuse its discretion
in allowing Rice’s testimony as to the standard of care.
The record clearly indicates that plaintiff’s counsel was
adequately apprised of the basic details of the expert’s
testimony. The disclosure and deposition testimony
confirmed that Rice would opine that the injury to the
plaintiff’s facial nerve was not the result of Fortgang’s
allegedly negligent conduct. The fact that Rice’s testi-
mony actually provided greater detail and specificity
than had been disclosed is irrelevant. Such granularity
is not required by the Practice Book or our case law.
To require such specificity of disclosure would place
a burden on parties that is inconsistent with the underly-
ing purpose of Practice Book § 13-4 (4), which is only
to assist parties in preparation of their case and to avoid
unfair surprise. Furthermore, we acknowledge that
even in cases where disclosure is found to be insuffi-
cient, the court has broad discretion in deciding
whether to impose the sanction of preclusion. Kemp v.
Ellington Purchasing Corp., supra, 9 Conn. App. 405.
In this case, the plaintiff has not met her burden of
showing that the disclosure was inconsistent with the
Practice Book, or that failure to preclude the expert
testimony amounted to an abuse of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 13-4 was amended on June 30, 2008. The amendment,
however, applied only to cases filed after January 1, 2009. Service of process
in this case was filed on June 27, 2008, and therefore the 2008 version of
§ 13-4 governs this appeal. For convenience, all references in this opinion
to Practice Book § 13-4 are to the 2008 revision unless otherwise noted.
2
The plaintiff alleged limitations to, inter alia, her ability to smile, raise
her right eyebrow, and close her right eyelid.
3
The jury answered ‘‘No’’ to the following interrogatory: ‘‘Has the plaintiff
proven, by a fair preponderance of the evidence and credible expert testi-
mony, that the defendant Dr. Paul L. Fortgang breached or deviated from
the recognized prevailing professional standard of care for a board certified
otolaryngologist in his treatment of the plaintiff Elaine Vitali?’’
4
On appeal, the plaintiff challenges only six of the questions.
5
At trial, the court concluded, after both hearing the position of the parties
and evaluating Rice’s deposition transcript: ‘‘[T]he objection is overruled.
. . . I’m reaching a conclusion that this opinion is confined within the dis-
closure.’’
In its memorandum of decision on the plaintiff’s motion to set aside the
verdict and motion for a new trial, the court stated: ‘‘Questions, like those
put here, encompassed within the scope of an adequate § 13-4 (4) disclosure,
are permissible even if the answers have not been fleshed out by opposing
counsel at a deposition or otherwise. To conclude otherwise would be far
too restrictive of a party’s right to examine a properly disclosed witness.’’
6
The disclosure provided in relevant part:
‘‘II. Subject Matter on Which Expert is Expected to Testify: Dr. Rice, a
board certified otolaryngologist, will testify regarding the surgical aspects
of this case. He will testify regarding causation, damages and standard of
care issues.
III. The Substance of Facts and Opinions to Which Each Expert Is
Expected to Testify: Dr. Rice will testify that Dr. Fortgang did not deviate
from the standard of care nor did he proximately cause this patient any
injury or damages.
‘‘In his opinion, Dr. Fortgang met the standard of care in his care and
treatment of the plaintiff. He will testify that injury of and/or cutting of a
nerve during this surgical procedure is a risk of the procedure that Dr.
Fortgang had warned the plaintiff of prior to surgery. He will testify about
how this surgery is performed, and how it was performed by Dr. Fortgang
and how the nerve was identified. He will testify that Dr. Fortgang properly
utilized the nerve stimulator and that use of a nerve monitor in this surgery
is not the standard of care. He will testify that both nerve monitors and
nerve stimulators are unreliable. Dr. Rice will further testify that at the optic
branch the nerve was involved with the tumor and there was no way Dr.
Fortgang or any surgeon could have avoided injury to the nerve branch at
that level. He will testify that Dr. Fortgang appropriately repaired the nerve
when he timely identified what had occurred. He will explain how nerves
and veins can look similar especially when you are putting on traction to
get exposure.
‘‘Dr. Rice will offer an opinion on the plaintiff’s current status and progno-
sis based on the records disclosed by the plaintiff. He will refute the criti-
cisms of the plaintiff’s experts and the allegations listed in the plaintiff’s
complaint. He will testify regarding his opinions on prognosis and damages.
More specifically, he will testify that the plaintiff’s current condition was
not proximately caused by any negligence of Dr. Fortgang. He will testify
that the plaintiff has failed to mitigate her damages in that she has refused
to have a gold weight placed in her eyelid, animation surgery and/or a sling
procedure, all of which could have significantly improved her damage
issues.’’
7
Practice Book (2008) § 13-4 (4) provides in relevant part: ‘‘Any expert
witness disclosed pursuant to this rule within six months of the trial date
shall be made available for the taking of that expert’s deposition within
thirty days of the date of such disclosure. . . .’’
8
‘‘[The Defendant’s Counsel]: Dr. Lucarini told this jury that Dr. Fortgang
deviated from the standard of care by failing to follow this unknown structure
deep into the parotid gland in search of the branching . . . point . . . .
Do you agree that that is what the standard of care required?
‘‘[Rice]: No.
‘‘[The Defendant’s Counsel]: Okay. And can you explain to the jury why
that maneuver would be a very dangerous maneuver?
‘‘[Rice]: Well, if you’re following a structure into the parotid gland and it
happens to not be the nerve, you’re running the risk of actually cutting the
nerve while you’re doing it.’’
9
‘‘[The Defendant’s Counsel]: So, doctor, with reasonable medical proba-
bility, did Dr. Fortgang’s decision to rule out by all the means he felt he
had available to him, that the structure was the facial nerve, comply with
the standard of care? . . .
‘‘[Rice]: Yes.
‘‘[The Defendant’s Counsel]: Okay. And, doctor, were there any other
techniques available to him or had he exercised all of them?
‘‘[Rice]: I think he used every technique that I know of.’’
10
‘‘[The Defendant’s Counsel]: And do you believe that Dr. Fortgang did
everything he possibly could and all the techniques known to [otolaryngologi-
cal] surgeons to protect the facial nerve during the parotidectomy that he
performed on this plaintiff? . . .
‘‘[Rice]: Yes.’’
11
‘‘[The Defendant’s Counsel]: Doctor, with reasonable medical probabil-
ity, did Dr. Fortgang, at all times, in performing the surgery, comply with
the standard of care? . . .
‘‘[Rice]: Yes.’’
12
‘‘[The Defendant’s Counsel]: And with reasonable medical probability,
did Dr. Fortgang’s decision to divide the structure at this point, to cut it,
comply with the standard of care? . . .
‘‘[Rice]: Yes.
‘‘[The Defendant’s Counsel]: And can you tell the jury the basis of that
opinion, doctor?
‘‘[Rice]: Well, again, he had tested the structure every way that I know
to test it, to find out if it was or wasn’t the nerve, and it didn’t appear to
be the nerve. Something deeper was stimulating. So to get to it, the deeper
structure, you’d have to cut this to get it out of the way.’’
13
‘‘[The Defendant’s Counsel]: Do you believe that his inability to identify
that structure initially as the facial nerve, in any way, failed to comply with
the standard of care? . . .
‘‘[Rice]: No.’’
14
See footnote 6 of this opinion.