Barnes v. Connecticut Podiatry Group, P.C. ( 2020 )

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KENNETH BARNES v. CONNECTICUT PODIATRY
GROUP, P.C., ET AL.
(AC 39564)
Alvord, Moll and Beach, Js.
Syllabus
The plaintiff K sought to recover damages from the defendants for medical
malpractice in connection with the alleged failure of the defendant D,
a podiatrist, to rule out the possibility of impaired blood flow to K’s
feet and to refer K to a vascular specialist, resulting, inter alia, in the
partial amputations of K’s feet. K filed an expert witness disclosure
identifying G as an expert on the standard of care and causation, and
later filed an amended expert witness disclosure. The defendants filed
a motion to preclude the amended expert witness disclosure, which the
court denied without prejudice, but also ordered, on January 13, 2016,
that K was precluded from disclosing additional experts. After the court
denied K’s motion for reargument and reconsideration of that order, K
filed a motion to modify the court’s scheduling order dated January 19,
2016, and filed an expert witness disclosure identifying R as an additional
expert. The court sustained the defendants’ objections thereto and
granted their motion to preclude R’s testimony, stating that it was adher-
ing to its January 13, 2016 order. The court subsequently precluded G
from offering expert testimony and rendered summary judgment in favor
of the defendants, from which K appealed to this court. Thereafter, S,
the administratrix of K’s estate, was substituted as the plaintiff. Held:
1. The trial court did not err in ordering that K could not disclose addi-
tional experts:
a. S could not prevail on her claim that the trial court’s January 13, 2016
order constituted a sanction of preclusion subject to the applicable rule
of practice (§ 13-4 [h]), which establishes procedures for the disclosures
and depositions of experts in civil matters: the order was a case manage-
ment decision that the court had the inherent authority to enter, as the
court had expressed concern during argument on January 13, 2016,
concerning a representation made by K’s counsel that he might seek to
disclose additional experts, because at that time, the trial in this action,
which had been pending since 2012, was scheduled to begin on January
19, 2016, and nothing in the record indicated that the court entered the
order as a result of a violation by K of any of the provisions of § 13-4;
moreover, notwithstanding that the defendants did not request such an
order and that S claimed that good cause existed to allow K to disclose
additional experts, it was within the court’s broad discretion, exercised
pursuant to its authority to manage its docket, to preclude K from
disclosing additional experts, particularly where the parties were on the
eve of trial, which had been rescheduled, and where the date by which
K had to disclose his experts had passed.
b. The trial court did not err in adhering to the January 13, 2016 order;
that court determined that it would not hear reargument on the January
13, 2016 order because a different judge had entered the order and had
subsequently denied K’s motion for reargument and for reconsideration,
there was no basis for S’s contention that the court improperly relied on
the law of the case doctrine, and S did not present any other cognizable
argument challenging the court’s decision.
2. The trial court did not err in precluding G from offering expert opinions
as to the standard of care and causation: that court reasonably deter-
mined that there was an inadequate factual basis to conclude that G
knew the prevailing professional standard of care applicable to D in
Connecticut in 2011, when the defendants’ alleged professional negli-
gence occurred, because G’s knowledge of that standard of care was
scant and there was no foundation for G to aver that the podiatric
standard of care in Connecticut was the same as the standard of care
in Pennsylvania, where G was licensed and had practiced exclusively;
moreover, G averred that he did not know whether the partial amputa-
tions of K’s feet could have been prevented and that a vascular surgeon
was needed to opine as to whether the amputations could have been
avoided but for the defendants’ alleged breach of the standard of care,
and S did not cite any part of the record that would have undermined
the court’s determination that G could not testify that the defendants’
breach of the standard of care led to K’s injuries.
3. S could not prevail on her claim that the trial court erred in rendering
summary judgment in favor of the defendants; that court properly pre-
cluded K from disclosing additional experts and G from offering standard
of care and causation opinions, and, as a result, K was unable to produce
expert testimony establishing the applicable standard of care, a breach
of that standard and causation, and he, therefore, could not establish
a prima facie case of medical malpractice.
Argued October 8, 2019—officially released January 14, 2020
Procedural History
Action seeking damages for the defendants’ medical
malpractice, brought to the Superior Court in the judi-
cial district of New Haven, where the court, A. Rob-
inson, J., precluded certain expert testimony; there-
after, the court, Lager, J., granted the motion for
summary judgment filed by the defendants and ren-
dered judgment thereon, from which the named plaintiff
appealed to this court; subsequently, this court granted
the motion to substitute Sherry West Barnes, the admin-
istratrix of the estate of the named plaintiff, as the
plaintiff. Affirmed.
Joseph R. Mirrione, for the appellant (substitute
plaintiff).
Ellen M. Costello, for the appellees (defendants).
Opinion
MOLL, J. In this medical malpractice action, the sub-
stitute plaintiff, Sherry West Barnes, administratrix of
the estate of Kenneth Barnes (administratrix),1 appeals
from the summary judgment rendered by the trial court
in favor of the defendants, Connecticut Podiatry Group,
P.C., and Marc Daddio, a doctor of podiatric medicine.
On appeal, the administratrix claims that (1) the court,
A. Robinson, J., erred in precluding Barnes from dis-
closing additional experts, and (2) the court, Lager, J.,
erred in (a) adhering to Judge Robinson’s order preclud-
ing Barnes from disclosing additional experts, (b) pre-
cluding the expert opinions of Barnes’ disclosed expert,
and (c) rendering summary judgment in favor of the
defendants. We disagree and, accordingly, affirm the
summary judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On February 29,
2012, Barnes commenced this medical malpractice
action against the defendants. In a revised two count
complaint filed on April 17, 2012, Barnes alleged that,
while he was a patient of the defendants in 2011, the
defendants deviated from the applicable standard of
podiatric care by failing to suspect and rule out the
possibility of an impairment in the blood flow to Barnes’
feet and by failing to refer Barnes to a vascular special-
ist, resulting, inter alia, in the partial amputations of
Barnes’ feet. On April 26, 2012, the defendants answered
the revised complaint, denying the material allega-
tions therein.
On May 3, 2012, Barnes filed an expert witness disclo-
sure identifying Jack B. Gorman, a podiatrist practicing
in Pennsylvania, as his expert on the standard of care
and causation. The disclosure indicated that Dr. Gor-
man was expected to testify that the defendants devi-
ated from the applicable standard of care by failing to
suspect and rule out the possibility of ‘‘vascular compro-
mise’’ and make an appropriate and timely referral to
a vascular specialist. In addition, per the disclosure, Dr.
Gorman was expected to testify that the defendants’
deviation from the applicable standard of care resulted
in the partial amputations of Barnes’ feet.
On June 25, 2013, the trial court, A. Robinson, J.,
approved a scheduling order, inter alia, setting Septem-
ber 1, 2013, as the deadline by which Barnes had to
disclose all of his experts. The next day, a JDNO notice
was issued providing that a jury trial was scheduled to
begin on September 15, 2014. Barnes did not disclose
any additional experts on or before September 1, 2013.
On March 12, 2014, the defendants filed a motion to
preclude the expert testimony of Dr. Gorman on the
basis that, despite their multiple attempts to depose
him, Dr. Gorman refused to attend a deposition without
a prepayment of his fees. On April 7, 2014, Judge Rob-
inson issued an order declining to preclude Dr. Gor-
man’s expert testimony, but requiring the parties to
select a date, no later than May 14, 2014, on which to
conduct Dr. Gorman’s deposition, for which the defen-
dants were not required to remit a prepayment. Not-
withstanding the court’s order, Dr. Gorman was not
deposed on or before May 14, 2014.
On September 12, 2014, three days before the start
of trial, Terence S. Hawkins, Barnes’ prior counsel, filed
a motion for a continuance of the trial, representing
that Hawkins was scheduled to undergo an emergency
medical procedure on September 15, 2014. The same
day, Judge Robinson granted the motion and scheduled
a status conference for October 15, 2014. On October
14, 2014, Hawkins filed a motion for a continuance of
the status conference, representing that he was closing
his legal practice on October 31, 2014.2 The same day,
Judge Robinson granted the motion and ordered the
parties’ counsel to select a new date for the status
conference. Subsequently, Judge Robinson issued a sep-
arate order requiring an appearance to be filed on behalf
of Barnes no later than November 21, 2014, or else
the case would be dismissed. On November 17, 2014,
Attorney Joseph R. Mirrione appeared on behalf of
Barnes. On November 18, 2014, JDNO notices were
issued providing, respectively, that a trial management
conference was scheduled for December 22, 2015, and
that the trial was rescheduled to January 19, 2016.
On September 25, 2015, Barnes filed a motion for a
continuance of the trial on the ground that Attorney
Mirrione was ‘‘relatively new counsel’’ who had taken
over Barnes’ case from Hawkins. The same day, Judge
Robinson denied the motion for a continuance without
prejudice to the motion being renewed at the trial man-
agement conference. Notably, Judge Robinson also
stated that, if a continuance were granted at that time,
it would be marked final and no additional continuances
would be permitted.
On November 13, 2015, Barnes filed an amended
expert witness disclosure with respect to Dr. Gorman.
The amended expert witness disclosure indicated that
Dr. Gorman was expected to testify that (1) ‘‘the history
and physical were inadequate,’’ (2) upon noting ‘‘gangre-
nous changes,’’ the defendants failed to ‘‘take an ade-
quate history and physical and did not order antibiotics
or other appropriate tests,’’ (3) the defendants failed
to refer Barnes to a vascular surgeon in a timely manner,
(4) the defendants failed to communicate with Barnes’
family doctor and vascular surgeon, (5) the defendants
allowed Barnes’ condition to deteriorate, and (6) Barnes
underwent multiple surgeries and amputations as a
result of the defendants’ conduct.
On November 24, 2015, the defendants filed a motion
to preclude the amendment to Dr. Gorman’s expert
witness disclosure, to which Barnes objected. On Janu-
ary 13, 2016, after hearing argument on January 11,
2016,3 Judge Robinson issued an order denying, without
prejudice, the motion to preclude. Judge Robinson
determined that Barnes should be allowed to supple-
ment Dr. Gorman’s testimony, provided that Dr. Gor-
man be made available for a deposition within fourteen
days of the order. Additionally, Judge Robinson ordered
that Barnes was ‘‘precluded from disclosing any addi-
tional experts.’’ Judge Robinson then assigned the case
to Judge Lager for the management of any pending and
future pretrial motions, as well as for trial, and directed
the parties to report to Judge Lager to address the
scheduling of trial. On January 19, 2016, following a
status and scheduling conference, Judge Lager issued
a scheduling order, inter alia, rescheduling the trial date
to August 15, 2016. The January 19, 2016 scheduling
order did not provide for the additional disclosure of
experts by Barnes.
On January 19, 2016, Barnes filed a motion for reargu-
ment and reconsideration of the portions of Judge Rob-
inson’s January 13, 2016 order precluding him from
disclosing any additional experts and requiring Dr. Gor-
man’s deposition to be conducted within fourteen days
of the order. The defendants filed an objection to that
motion later on the same day.
On January 29, 2016, Dr. Gorman was deposed. On
February 18, 2016, upon the filing of a request to amend
and without objection from the defendants, Barnes’
amended revised two count complaint was deemed
filed. Therein, Barnes alleged that the defendants devi-
ated from the applicable standard of podiatric care,
causing, inter alia, the partial amputations of Barnes’
feet, on the grounds that (1) the defendants failed to
suspect and rule out the possibility of an impairment
in the blood flow to Barnes’ feet, (2) they failed to refer
Barnes to a vascular specialist, (3) ‘‘the history and
physical were inadequate,’’ (4) upon noting ‘‘gangre-
nous changes,’’ they failed to ‘‘take an adequate history
and physical and [to] order antibiotics or other appro-
priate tests,’’ (5) they failed to communicate with
Barnes’ treating kidney doctor and vascular surgeon,
and (6) they allowed Barnes’ condition to deteriorate.
The defendants subsequently answered the amended
revised complaint, denying the material allegations
therein.4
On February 29, 2016, Barnes filed a motion to modify
the January 19, 2016 scheduling order, wherein he, inter
alia, sought permission to disclose an additional expert,
to which the defendants objected. On March 4, 2016,
following argument, Judge Lager issued a modified
scheduling order, inter alia, amending the dates by
which certain witnesses had to be deposed. The modi-
fied scheduling order did not contain any provision for
the disclosure of additional experts by Barnes.
On March 9, 2016, notwithstanding the portion of
Judge Robinson’s January 13, 2016 order precluding
Barnes from disclosing additional experts (January 13,
2016 order), Barnes filed an expert witness disclosure
identifying Rakesh Shah, a cardiologist, as an additional
causation expert.5 On March 11, 2016, the defendants
filed a combined objection to the expert witness disclo-
sure of Dr. Shah and a motion to preclude Dr. Shah’s
expert testimony, asserting that the disclosure violated
the January 13, 2016 order. Barnes subsequently filed
a combined reply to the defendants’ objection and an
opposition to the defendants’ motion to preclude.
On March 17, 2016, Barnes filed a request for argu-
ment regarding his motion for reargument and reconsid-
eration of the January 13, 2016 order, and he reclaimed
the motion to the short calendar of March 21, 2016. On
March 24, 2016, Judge Robinson summarily denied both
the request for argument and the motion for reargument
and reconsideration. On May 12, 2016, following argu-
ment, Judge Lager sustained the defendants’ objection
to Barnes’ expert witness disclosure of Dr. Shah and
granted the defendants’ motion to preclude Dr. Shah’s
expert testimony, stating that she was adhering to the
January 13, 2016 order and noting that Judge Robinson
had declined to reconsider that order.
Following Dr. Gorman’s deposition on January 29,
2016, the defendants filed several motions in limine
seeking to preclude the expert testimony of Dr. Gorman
as to the standard of care and causation. Barnes
objected to these motions. On July 26, 2016, after hear-
ing argument on July 15, 2016, Judge Lager issued a
memorandum of decision addressing the defendants’
claims regarding the preclusion of Dr. Gorman’s expert
opinions.6 With respect to Dr. Gorman’s standard of
care opinion, Judge Lager concluded that, although Dr.
Gorman satisfied the minimum qualification require-
ments of General Statutes § 52-184c, there was an insuf-
ficient factual basis to determine whether Dr. Gorman
knew the prevailing professional standard of care appli-
cable to Dr. Daddio in Connecticut in 2011. Judge Lager
stated that the court would provide Barnes with ‘‘one
final opportunity’’ to establish the requisite foundation
on August 3, 2016, the date scheduled for a Porter hear-
ing, at which Barnes had to produce Dr. Gorman to be
subject to examination. Turning then to the issue of
causation, Judge Lager concluded that Dr. Gorman was
precluded from offering expert testimony as to causa-
tion because he was not qualified and his causation
opinions exceeded the scope of his expertise and
were speculative.
On August 1, 2016, Barnes filed a request to disclose
Dr. Shah as a causation expert, to which the defendants
filed an objection. On August 2, 2016, Barnes filed a
letter with the court stating that he would not produce
Dr. Gorman at the scheduled August 3, 2016 hearing in
light of Judge Lager’s decision precluding Dr. Gorman
from testifying as to causation. On August 3, 2016, after
hearing argument, Judge Lager denied Barnes’ request
to disclose Dr. Shah as an expert and sustained the
defendants’ objection to the request.
Additionally, on August 1, 2016, the defendants filed
a motion for summary judgment, which they supple-
mented on August 8, 2016, on the ground that Barnes
was unable to produce expert testimony as to the stan-
dard of care or causation and, thus, could not demon-
strate a prima facie case of medical malpractice. Barnes
objected to the motion for summary judgment. On
August 10, 2016, following argument, Judge Lager
granted the defendants’ motion for summary judgment
on the record. The following day, Judge Lager issued
a memorandum of decision, determining that (1) there
was an inadequate factual basis upon which the court
could find Dr. Gorman qualified to testify as to the
standard of care, (2) as she had previously concluded,
Dr. Gorman was precluded from testifying as to causa-
tion, and (3) as a result of the court’s rulings, Barnes
lacked the expert opinions necessary to prove the ele-
ments of his medical malpractice claims and, therefore,
the defendants were entitled to summary judgment.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
At the outset, we set forth the legal principles govern-
ing medical malpractice actions. ‘‘[T]o prevail in a medi-
cal malpractice action, the plaintiff must prove (1) the
requisite standard of care for treatment, (2) a deviation
from that standard of care, and (3) a causal connection
between the deviation and the claimed injury. . . .
Generally, expert testimony is required to establish both
the standard of care to which the defendant is held and
the breach of that standard. . . . Likewise, [e]xpert
medical opinion evidence is usually required to show
the cause of an injury or disease because the medical
effect on the human system of the infliction of injuries
is generally not within the sphere of the common knowl-
edge of the lay person.’’7 (Citations omitted; internal
quotation marks omitted.) Procaccini v. Lawrence &
Memorial Hospital, Inc., 175 Conn. App. 692, 717–18,
168 A.3d 538, cert. denied, 327 Conn. 960, 172 A.3d
801 (2017).
I
The administratrix raises several claims on appeal
relating to the January 13, 2016 order. Specifically, the
administratrix asserts that (1) the January 13, 2016
order was improper because (a) it constituted a sanc-
tion of preclusion governed by Practice Book § 13-4
(h), the requirements of which were not satisfied, (b)
the defendants did not request that the court enter
an order precluding Barnes from disclosing additional
experts, and (c) good cause existed to allow Barnes to
disclose additional experts, and (2) Judge Lager erred
in adhering to the January 13, 2016 order. For the rea-
sons set forth subsequently in this opinion, we reject
these claims.
A
We first address the administratrix’ claims that the
January 13, 2016 order was improper because (1) it
constituted a sanction of preclusion subject to the
requirements Practice Book § 13-4 (h), which were not
met, (2) the defendants did not request that the court
preclude Barnes from disclosing additional experts, and
(3) good cause existed to permit Barnes to disclose
additional experts. We disagree.
The following additional facts and procedural history
are relevant to our disposition of these claims. On Janu-
ary 11, 2016, the parties appeared before Judge Rob-
inson to present argument on the defendants’ motion
to preclude Barnes’ amendment to Dr. Gorman’s expert
witness disclosure. During argument, Barnes’ counsel
represented that he might seek to disclose other experts
in addition to Dr. Gorman. Judge Robinson indicated
that she was ‘‘concerned’’ by that representation.
Barnes’ counsel then reiterated that ‘‘there might be
another disclosure . . . .’’ In response, the defendants’
counsel stated that ‘‘if we’re going to start getting into—
into more experts, then, I really have a concern. I—I
mean, that is really concerning, because this case is
supposed to be going to trial next week.’’8 Additionally,
the defendants’ counsel stated that she ‘‘object[ed] . . .
to any further disclosures.’’
Thereafter, on January 13, 2016, Judge Robinson
denied the defendants’ motion to preclude without prej-
udice, stating in relevant part: ‘‘Though the defendant[s]
[make] many compelling and persuasive arguments, the
court ultimately holds that [Barnes] should be allowed
to supplement the opinions of his already disclosed
[expert, i.e., Dr. Gorman], provided the expert is made
available for [a] deposition within fourteen days of this
order. Further, [Barnes] is precluded from disclosing
any additional experts.’’ (Emphasis added.)
1
The administratrix contends that the January 13, 2016
order was improper because it constituted a sanction
of preclusion governed by Practice Book § 13-4 (h) and
it did not satisfy the requirements set forth therein. The
defendants argue that the January 13, 2016 order was
a case management decision that Judge Robinson had
the inherent authority to enter. We agree with the
defendants.
Resolving this claim requires us to interpret the
nature of the January 13, 2016 order. ‘‘The construction
of an order is a question of law for the court, and the
court’s review is plenary. . . . As a general rule,
[orders and] judgments are to be construed in the same
fashion as other written instruments. . . . The legal
effect of an order must be declared in light of the literal
meaning of the language used. The unambiguous terms
of [an order], like the terms in a written contract, are
to be given their usual and ordinary meaning. . . . [An
order] must be construed in light of the situation of
the court, what was before it, and the accompanying
circumstances.’’ (Citations omitted; internal quotation
marks omitted.) In re Jacklyn H., 162 Conn. App. 811,
830, 131 A.3d 784 (2016).
The administratrix urges us to construe the January
13, 2016 order as a sanction of preclusion governed
by Practice Book § 13-4 (h). Section 13-4 establishes
procedures, inter alia, for the disclosures and deposi-
tions of experts in civil matters. Section 13-4 (h) pro-
vides: ‘‘A judicial authority may, after a hearing, impose
sanctions on a party for failure to comply with the
requirements of this section. An order precluding the
testimony of an expert witness may be entered only
upon a finding that: (1) the sanction of preclusion,
including any consequence thereof on the sanctioned
party’s ability to prosecute or to defend the case, is
proportional to the noncompliance at issue, and (2) the
noncompliance at issue cannot adequately be addressed
by a less severe sanction or combination of sanctions.’’
The administratrix contends that the January 13, 2016
order was entered without the hearing and findings
required by this rule of practice.
In response, the defendants argue that the January
13, 2016 order was a case management decision that
Judge Robinson had the inherent authority to enter.
‘‘[C]ase management authority is an inherent power
necessarily vested in trial courts to manage their own
affairs in order to achieve the expeditious disposition of
cases. . . . The ability of trial judges to manage cases
is essential to judicial economy and justice.’’ (Citation
omitted.) Krevis v. Bridgeport, 262 Conn. 813, 819, 817
A.2d 628 (2003). As our Supreme Court has observed,
‘‘[i]t is well known that justice delayed is justice denied.
In order to fulfill our responsibility of dispensing justice
we in the judiciary must adopt an effective system of
caseflow management. Caseflow management is based
upon the premise that it is the responsibility of the
court to establish standards for the processing of cases
and also, when necessary, to enforce compliance with
such standards. Our judicial system cannot be con-
trolled by the litigants and cases cannot be allowed to
drift aimlessly through the system. To reduce delay
while still maintaining high quality justice, it is essential
that we have judicial involvement in managing cases.’’
In re Mongillo, 190 Conn. 686, 690–91, 461 A.2d 1387
(1983), overruled in part on other grounds, State v.
Salmon, 250 Conn. 147, 154–55, 735 A.2d 333 (1999).
As the defendants correctly posit, the January 13,
2016 order was a case management decision, rather
than a sanction of preclusion. During argument on the
defendants’ motion to preclude the amendment to Dr.
Gorman’s expert witness disclosure, Judge Robinson
expressed concern regarding the representation made
by Barnes’ counsel that he might seek to disclose addi-
tional experts. At the time of argument and when Judge
Robinson entered the January 13, 2016 order, the trial
in this action, which had been pending since February,
2012, was scheduled to begin on January 19, 2016. The
trial had been rescheduled once before in November,
2014, following Attorney Mirrione’s appearance on
behalf of Barnes. In addition, pursuant to the scheduling
order in effect at the time of argument and when the
January 13, 2016 order was entered, the deadline by
which Barnes had to disclose his experts—September
1, 2013—had long expired. By permitting Barnes to
amend the expert witness disclosure of Dr. Gorman
and continuing the trial date to accommodate that sup-
plementation, Judge Robinson simultaneously ordered
that Barnes could not disclose any additional experts,
with the ostensible purpose of preventing any legerde-
main. Furthermore, nothing in the record indicates that
Judge Robinson entered the January 13, 2016 order as
a result of a violation by Barnes of any of the provisions
of Practice Book § 13-4, which, by its plain terms, is
necessary in order to invoke § 13-4 (h).9 For these rea-
sons, we conclude that the January 13, 2016 order was
a case management decision, as opposed to a sanction
of preclusion, that Judge Robinson had the inherent
authority to enter. Therefore, the administratrix’ reli-
ance on § 13-4 (h) is misplaced.10
2
The administratrix also claims that the January 13,
2016 order was improper because, in seeking to pre-
clude Barnes from amending the expert witness disclo-
sure of Dr. Gorman, the defendants did not request,
as relief, that Judge Robinson preclude Barnes from
disclosing additional experts. In light of our conclusion
in part I A 1 of this opinion that the January 13, 2016
order was a case management decision, we reject this
claim. ‘‘[T]rial courts have wide latitude to manage
cases consistent with judicial economy and justice
. . . .’’ (Internal quotation marks omitted.) Griswold v.
Camputaro, 331 Conn. 701, 709, 207 A.3d 512 (2019),
quoting Krevis v. Bridgeport, supra, 262 Conn. 818–19.
Thus, notwithstanding that the defendants did not
request such an action, it was within Judge Robinson’s
broad discretion, exercised pursuant to her inherent
authority to manage her docket, to preclude Barnes
from disclosing additional experts.11
3
The administratrix next claims that Judge Robinson
abused her discretion in entering the January 13, 2016
order because good cause existed to permit Barnes to
disclose additional experts. Specifically, the administra-
trix asserts that, as a result ‘‘of the manner in which
[Hawkins] conducted this case’’ before Attorney Mirri-
one appeared on behalf of Barnes in November, 2014,
Attorney Mirrione was initially unaware that he might
need to retain other experts and Attorney Mirrione
worked diligently to prosecute the case. This claim is
unavailing.
As we concluded in part I A 1 of this opinion, the
January 13, 2016 order constituted a case management
decision. ‘‘We review case management decisions for
abuse of discretion, giving [trial] courts wide latitude.
. . . A party adversely affected by a [trial] court’s case
management decision thus bears a formidable burden
in seeking reversal. . . . A trial court has the authority
to manage cases before it as is necessary. . . . Defer-
ence is afforded to the trial court in making case man-
agement decisions because it is in a much better posi-
tion to determine the effect that a particular procedure
will have on both parties. . . . The case management
authority is an inherent power necessarily vested in
trial courts to manage their own affairs in order to
achieve the expeditious disposition of cases. . . . The
ability of trial judges to manage cases is essential to
judicial economy and justice.’’ (Internal quotation
marks omitted.) Levine v. Hite, 189 Conn. App. 281,
296, 207 A.3d 100 (2019).
In the present case, it was well within Judge Rob-
inson’s wide discretion to preclude Barnes from disclos-
ing additional experts where the parties were on the
eve of trial, which had been rescheduled previously, in
a case pending since February, 2012, and where the
date by which Barnes had to disclose his experts had
passed.12 Accordingly, we conclude that Judge Rob-
inson did not abuse her discretion in entering the Janu-
ary 13, 2016 order.13
B
We next turn to the administratrix’ claim that Judge
Lager erred in adhering to the January 13, 2016 order.
We are not persuaded.
The following additional facts and procedural history
are relevant to our resolution of this claim. On January
19, 2016, after Judge Robinson had entered the January
13, 2016 order, Judge Lager issued a scheduling order
that did not contain any provision permitting Barnes
to disclose additional experts. On that same day, Barnes
filed the motion for reargument and reconsideration of
the January 13, 2016 order; however, he did not file a
caseflow request for immediate consideration of the
motion and he did not mark it ‘‘ready’’ or ‘‘take papers’’
when it printed on the February 1, 2016 short calendar.
On March 4, 2016, Judge Lager heard argument on
Barnes’ motion to modify the January 19, 2016 schedul-
ing order, wherein Barnes, inter alia, requested permis-
sion to disclose an additional expert, and the defen-
dants’ objection thereto. On the record, Judge Lager
stated that she was adhering to the January 13, 2016
order, which she described as ‘‘a very clear and direct
order’’ precluding Barnes from disclosing additional
experts. Judge Lager determined that she would not
hear reargument on the January 13, 2016 order because
Judge Robinson was the proper judicial authority from
whom Barnes had to seek reargument and reconsidera-
tion of the order.14 Judge Lager also stated that she
‘‘believe[d] at the moment [that the January 13, 2016
order was] the law of the case.’’ Thereafter, Judge Lager
issued a modified scheduling order, which did not con-
tain any provision for the disclosure of additional
experts by Barnes.
On May 12, 2016, following Judge Robinson’s March
24, 2016 denial of Barnes’ motion for reargument and
reconsideration of the January 13, 2016 order, the par-
ties presented argument to Judge Lager on the defen-
dants’ combined objection to Barnes’ expert witness
disclosure of Dr. Shah and motion to preclude Dr.
Shah’s expert opinion. During argument, Barnes’ coun-
sel argued that, notwithstanding Judge Robinson’s
denial of the motion for reargument and reconsidera-
tion, Judge Lager was not bound by the January 13,
2016 order and could examine its propriety. In response,
Judge Lager stated that she incorrectly referred to the
January 13, 2016 order as the law of the case during
the March 4, 2016 proceeding and that she could not
revisit the January 13, 2016 order on the basis that it
was a ‘‘discovery sanction’’ over which Judge Robinson
‘‘had full and complete authority . . . .’’15 In the May
12, 2016 order sustaining the defendants’ objection to
Dr. Shah’s expert witness disclosure and granting the
defendants’ motion to preclude Dr. Shah’s expert opin-
ion, Judge Lager reasoned that she was adhering to the
January 13, 2016 order, noting that Judge Robinson had
declined to reconsider it.
The administratrix asserts that Judge Lager erred in
adhering to the January 13, 2016 order because she
improperly construed the January 13, 2016 order as the
law of the case. The record reveals, however, that Judge
Lager did not rely on the law of the case doctrine16 in
adhering to the January 13, 2016 order. Although Judge
Lager made a passing reference during the March 4,
2016 proceeding to the January 13, 2016 order as the
law of the case, the crux of Judge Lager’s decision
declining to hear reargument on the January 13, 2016
order was that Judge Robinson was the proper judicial
authority from whom Barnes had to seek adjudication
of his pending motion for reargument and reconsidera-
tion of that order. See Practice Book § 11-12 (c) (‘‘The
motion to reargue shall be considered by the judge who
rendered the decision or order. Such judge shall decide,
without a hearing, whether the motion to reargue
should be granted. If the judge grants the motion, the
judge shall schedule the matter for hearing on the relief
requested.’’ [Emphasis added.]) During the subsequent
May 12, 2016 proceeding, Judge Lager explicitly stated
that the January 13, 2016 order was not the law of the
case, but rather a discovery sanction imposed by Judge
Robinson that she could not revisit. There is no basis
for the administratrix’ contention that Judge Lager
improperly relied on the law of the case doctrine, and
she does not present any other cognizable argument
challenging the basis of Judge Lager’s decisions adher-
ing to the January 13, 2016 order. Thus, this claim fails.
II
We next address the administratrix’ claim that Judge
Lager erred in precluding Dr. Gorman from offering
expert opinions as to the standard of care and causa-
tion. For the reasons that follow, we disagree.
We first set forth the standard of review and legal
principles governing our resolution of the administra-
trix’ claim. ‘‘The decision to preclude a party from intro-
ducing expert testimony is within the discretion of the
trial court. . . . On appeal, that decision is subject only
to the test of abuse of discretion.’’ (Internal quotation
marks omitted.) Ruff v. Yale-New Haven Hospital, Inc.,
172 Conn. App. 699, 709, 161 A.3d 552 (2017).
‘‘Our standard regarding the admissibility of expert
testimony is well settled. Expert testimony should be
admitted when: (1) the witness has a special skill or
knowledge directly applicable to a matter in issue, (2)
that skill or knowledge is not common to the average
person, and (3) the testimony would be helpful to the
court or jury in considering the issues. . . . In other
words, [i]n order to render an expert opinion the wit-
ness must be qualified to do so and there must be a
factual basis for the opinion.’’ (Internal quotation marks
omitted.) Rockhill v. Danbury Hospital, 176 Conn. App.
39, 61, 168 A.3d 630 (2017); see also Conn. Code Evid.
§ 7-2.17
A
We first turn to the administratrix’ claim that Judge
Lager improperly precluded Dr. Gorman’s standard of
care opinion. This claim is unavailing.
We begin by setting forth the following legal princi-
ples applicable to the disposition of this claim. General
Statutes § 52-184c (a) provides: ‘‘In any civil action to
recover damages resulting from personal injury or
wrongful death occurring on or after October 1, 1987,
in which it is alleged that such injury or death resulted
from the negligence of a health care provider, as defined
in section 52-184b,18 the claimant shall have the burden
of proving by the preponderance of the evidence that
the alleged actions of the health care provider repre-
sented a breach of the prevailing professional standard
of care for that health care provider. The prevailing
professional standard of care for a given health care
provider shall be that level of care, skill and treatment
which, in light of all relevant surrounding circum-
stances, is recognized as acceptable and appropriate
by reasonably prudent similar health care providers.’’
(Footnote added.) General Statutes § 52-184c (c) pro-
vides: ‘‘If the defendant health care provider is certified
by the appropriate American board as a specialist, is
trained and experienced in a medical specialty, or holds
himself out as a specialist, a ‘similar health care pro-
vider’ is one who: (1) Is trained and experienced in the
same specialty; and (2) is certified by the appropriate
American board in the same specialty; provided if the
defendant health care provider is providing treatment
or diagnosis for a condition which is not within his
specialty, a specialist trained in the treatment or diagno-
sis for that condition shall be considered a ‘similar
health care provider.’ ’’ General Statutes § 52-184c (d)
provides: ‘‘Any health care provider may testify as an
expert in any action if he: (1) Is a ‘similar health care
provider’ pursuant to subsection (b) or (c)19 of this
section; or (2) is not a similar health care provider
pursuant to subsection (b) or (c) of this section but,
to the satisfaction of the court, possesses sufficient
training, experience and knowledge as a result of prac-
tice or teaching in a related field of medicine, so as to
be able to provide such expert testimony as to the
prevailing professional standard of care in a given field
of medicine. Such training, experience or knowledge
shall be as a result of the active involvement in the
practice or teaching of medicine within the five-year
period before the incident giving rise to the claim.’’
(Footnote added.)
Our Supreme Court has explained that the provisions
of § 52-184c ‘‘have done nothing to abrogate the funda-
mental requirement . . . that an expert testifying
about the standard of care must know what that stan-
dard is in a particular situation. . . . [T]he require-
ments under § 52-184c (d) do not affect the trial court’s
discretion to determine whether a proffered expert is
qualified to testify as an expert. See Conn. Code Evid.
§§ 1-320 and 7-2 . . . . Indeed, § 52-184c merely sets out
minimum qualification standards for experts in medical
malpractice cases. Thus, a trial court that permits a
physician to testify as an expert without first determin-
ing whether he or she has a sufficient basis for knowing
the ‘prevailing’ standard of care is abdicating its eviden-
tiary gatekeeping responsibilities.’’ (Citations omitted;
footnotes altered.) Grondin v. Curi, 262 Conn. 637,
656–57, 817 A.2d 61 (2003).
The following additional facts and procedural history
are relevant to our disposition of the administratrix’
claim. After Dr. Gorman had been deposed on January
29, 2016, the defendants filed several motions in limine
requesting, inter alia, that the trial court preclude Dr.
Gorman’s standard of care opinion on the basis that
Dr. Gorman was not qualified to testify. On July 15,
2016, Judge Lager heard argument on, inter alia, the
issue of whether preclusion of Dr. Gorman’s standard
of care opinion was warranted. Following argument,
with Judge Lager’s permission, Barnes filed an affidavit
of Dr. Gorman dated July 18, 2016 (July 18, 2016 affida-
vit), and the defendants filed an affidavit of their expert,
Joseph Treadwell.
On July 26, 2016, in addressing whether preclusion of
Dr. Gorman’s standard of care opinion was warranted,
Judge Lager concluded that Dr. Gorman satisfied the
‘‘minimum qualification standards for experts in medi-
cal malpractice cases’’ because Dr. Gorman ‘‘was
actively engaged in the practice of podiatric medicine’’
at the time of the defendants’ alleged professional negli-
gence in 2011 and, therefore, Dr. Gorman met the
requirements of subdivision (d) (2) of § 52-184c. Citing
Grondin, Judge Lager then observed that the next step
was to determine whether Dr. Gorman had a sufficient
basis for knowing the prevailing professional standard
of care applicable to Dr. Daddio in Connecticut in 2011.
Following a review of Dr. Gorman’s deposition and
the affidavits of Dr. Gorman and Dr. Treadwell, Judge
Lager determined that ‘‘[Dr.] Gorman’s knowledge of
the standard of care applicable to [Dr.] Daddio in Con-
necticut is scant.’’ Judge Lager noted that Dr. Gorman
averred in the July 18, 2016 affidavit that, in comparing
his board certification to that of [Dr.] Daddio’s, the
‘‘standard of care for treating patients is the same’’;
(internal quotation marks omitted); however, on the
basis of the record before her, Judge Lager determined
that ‘‘[t]here is no foundation for [Dr.] Gorman’s state-
ment that the podiatric standard of care in Connecticut
is the same as the podiatric standard of care in Pennsyl-
vania where [Dr. Gorman] is licensed and has practiced
exclusively.’’ Judge Lager proceeded to conclude that
‘‘[o]n the present record, there is an inadequate factual
basis to conclude either that [Dr.] Gorman knows the
prevailing professional standard of care applicable to
[Dr.] Daddio in Connecticut in 2011 or that his Pennsyl-
vania podiatric practice was governed by the same stan-
dard of care. The court is willing to give [Barnes] one
final opportunity to establish the requisite foundation
by holding a hearing on August 3, 2016 . . . at which
Dr. Gorman must appear and be subject to examination
and cross-examination on this issue . . . .’’ As dis-
cussed more comprehensively in part II B of this opin-
ion, Judge Lager proceeded to rule that Dr. Gorman
was precluded from offering expert testimony as to cau-
sation.
On August 2, 2016, Barnes filed a letter addressed to
Judge Lager and the defendants’ counsel indicating that,
in light of Judge Lager’s preclusion of Dr. Gorman’s
causation opinion, Barnes would not produce Dr. Gor-
man at the scheduled hearing on August 3, 2016. On
August 3, 2016, the parties appeared before Judge Lager
to, inter alia, present argument on Barnes’ August 1,
2016 request to disclose Dr. Shah as a causation expert
and the defendants’ objection thereto. After Judge Lager
had denied the request to disclose and sustained the
defendants’ objection, there was a discussion on the
record about the defendants’ pending motion for sum-
mary judgment. During that discussion, Judge Lager
stated the following: ‘‘I think the ruling [on July 26,
2016] is clear that the [c]ourt felt there was an inade-
quate factual basis for the [c]ourt to make that determi-
nation [regarding Dr. Gorman’s knowledge of the appli-
cable standard of care] and was going to provide today,
not any other day, but today, [Barnes] that opportunity
to establish that basis. That has not been done. So as
of today, the [c]ourt can only conclude that there is no
factual basis, based on the record before it.’’
On August 10, 2016, Judge Lager heard argument on
the defendants’ motion for summary judgment, to which
Barnes had filed an objection accompanied by an affida-
vit of Dr. Gorman dated August 8, 2016 (August 8, 2016
affidavit). On August 11, 2016, in her memorandum of
decision granting the defendants’ motion for summary
judgment, Judge Lager stated in relevant part: ‘‘In the
ruling dated July 26, 2016 . . . this court focused on
the lack of foundational evidence upon which the court
could make a finding that ‘[Dr.] Gorman knows the
prevailing professional standard of care applicable to
[Dr.] Daddio in Connecticut in 2011 or that his Pennsyl-
vania podiatric practice was governed by the same stan-
dard of care.’ . . . Although the court was aware that
[Dr.] Gorman averred in [the July 18, 2016 affidavit]
that the ‘standard of care for treating patients is the
same,’ this conclusory statement lacked foundation. In
[the August 8, 2016 affidavit], [Dr.] Gorman aver[red]
that: ‘The standard of care is the same for all podiatrists.
The national standard of care as to what is expected
of a reasonable, prudent podiatrist [with respect to] the
diagnosis and treatment of a patient under the same
circumstance is the same in Connecticut as it is in all
other states.’ The foundation for this averral is that
podiatry students ‘in the United States are trained in
the same manner; [t]he same textbooks and reference
materials are used.’ ’’ Judge Lager then concluded that,
in light of Dr. Gorman’s testimony during his deposition
that he did not know the standard of care in Connecti-
cut, the ‘‘conclusory statements in [the August 8, 2016
affidavit]’’ failed to provide the ‘‘requisite foundation for
establishing [Dr.] Gorman’s knowledge of the prevailing
professional standard of care in this case’’ and ‘‘[t]here
is an inadequate factual basis before the court to find
[Dr.] Gorman qualified to testify as to the standard of
care.’’ For these reasons, Judge Lager, in effect, pre-
cluded Dr. Gorman’s standard of care opinion.
The administratrix asserts that Judge Lager erred in
precluding Dr. Gorman’s standard of care opinion
because physicians, including podiatrists such as Dr.
Gorman, are governed by a national standard of care
in medical malpractice cases. The administratrix also
contends that Dr. Gorman was qualified to offer a stan-
dard of care opinion on the ground that evidence was
produced illustrating, inter alia, that Dr. Gorman had
treated thousands of podiatric patients since 1967 and
trained residents in the field of podiatry.21 These conten-
tions are unavailing.
The relevant inquiry here is whether Dr. Gorman
knew what the prevailing professional standard of care
applicable to Dr. Daddio was in Connecticut in 2011.
Dr. Gorman’s January 29, 2016 deposition testimony
strongly suggested that he was not familiar with the
standard of care.22 Judge Lager found that the July 18,
2016 affidavit in which Dr. Gorman asserted knowledge
of a national standard of care was conclusory and
lacked foundation. Judge Lager then considered the
August 8, 2016 affidavit, in which Dr. Gorman averred
that, because (1) all students enrolled in podiatry
schools in the United States are trained in the same
manner, (2) all podiatrists attend the same seminars
and conferences to earn continuing education credits,
and (3) there are many organizations in the United
States offering continuing education courses relating
to podiatric medicine, ‘‘[t]he standard of care is the
same for all podiatrists’’ and ‘‘[t]he national standard
of care as to what is expected of a reasonable, prudent
podiatrist [with respect to] the diagnosis and treatment
of a patient under the same circumstance is the same
in Connecticut as it is in all other states.’’ Judge Lager
found that such affidavit did nothing to cure the conclu-
sory nature of, and lack of foundation for, Dr. Gorman’s
opinions as to standard of care. As Judge Lager reason-
ably determined, Dr. Gorman’s averments failed to
establish that Dr. Gorman had the requisite knowledge
of the applicable standard of care in order to testify
thereto. Accordingly, we conclude that Judge Lager did
not abuse her discretion in precluding Dr. Gorman’s
standard of care opinion.
B
We next consider the administratrix’ claim that Judge
Lager erred in precluding Dr. Gorman’s causation opin-
ion. We are not persuaded.
‘‘All medical malpractice claims, whether involving
acts or inactions of a defendant physician, require that
a defendant physician’s conduct proximately cause the
plaintiff’s injuries. The question is whether the conduct
of the defendant was a substantial factor in causing the
plaintiff’s injury. . . . This causal connection must rest
upon more than surmise or conjecture. . . . A trier is
not concerned with possibilities but with reasonable
probabilities. . . . The causal relation between an
injury and its later physical effects may be established
by the direct opinion of a physician, by his deduction
by the process of eliminating causes other than the
traumatic agency, or by his opinion based upon a hypo-
thetical question. . . .
‘‘To be reasonably probable, a conclusion must be
more likely than not. . . . Whether an expert’s testi-
mony is expressed in terms of a reasonable probability
that an event has occurred does not depend upon the
semantics of the expert or his use of any particular
term or phrase, but rather, is determined by looking at
the entire substance of the expert’s testimony. . . . An
expert . . . need not use talismanic words to show
reasonable probability. . . . There are no precise facts
that must be proved before an expert’s opinion may be
received in evidence. . . .
‘‘To prevail on a negligence claim, a plaintiff must
establish that the defendant’s conduct legally caused
the injuries. . . . As [our Supreme Court] observed
. . . [l]egal cause is a hybrid construct, the result of
balancing philosophic, pragmatic and moral
approaches to causation. The first component of legal
cause is causation in fact. Causation in fact is the purest
legal application of . . . legal cause. The test for cause
in fact is, simply, would the injury have occurred were
it not for the actor’s conduct. . . . The second compo-
nent of legal cause is proximate cause, which [our
Supreme Court has] defined as [a]n actual cause that
is a substantial factor in the resulting harm . . . . The
proximate cause requirement tempers the expansive
view of causation [in fact] . . . by the pragmatic . . .
shaping [of] rules which are feasible to administer, and
yield a workable degree of certainty. . . . [T]he test of
proximate cause is whether the defendant’s conduct
is a substantial factor in bringing about the plaintiff’s
injuries. . . . The existence of the proximate cause of
an injury is determined by looking from the injury to
the negligent act complained of for the necessary causal
connection. . . .
‘‘In other words, [p]roximate cause [is] defined as an
actual cause that is a substantial factor in the resulting
harm . . . . [T]he inquiry fundamental to all proximate
cause questions . . . [is] whether the harm which
occurred was of the same general nature as the foresee-
able risk created by the defendant’s negligence.’’ (Cita-
tions omitted; internal quotation marks omitted.) Ward
v. Ramsey, 146 Conn. App. 485, 490–92, 77 A.3d 935,
cert. denied, 310 Conn. 965, 83 A.3d 345 (2013).
The following additional facts and procedural history
are relevant to our resolution of the administratrix’
claim. Following Dr. Gorman’s deposition on January
29, 2016, the defendants filed motions in limine seeking,
inter alia, to preclude Dr. Gorman’s expert testimony
as to causation on the grounds that Dr. Gorman’s causa-
tion opinions (1) had no factual basis underlying them,
(2) exceeded the scope of his expertise, and (3) were
speculative. On July 15, 2016, the parties presented
argument, inter alia, as to whether Dr. Gorman’s causa-
tion opinion should be precluded. Thereafter, Barnes
filed the July 18, 2016 affidavit, and the defendants filed
the affidavit of Dr. Treadwell.
On July 26, 2016, Judge Lager ordered that Dr. Gor-
man was precluded from testifying as to causation.
Judge Lager summarized Dr. Gorman’s causation opin-
ion to be that the cause of the partial amputations of
Barnes’ feet was Dr. Daddio’s failures to suspect that
Barnes had ‘‘vascular insufficiency’’ and to refer Barnes
to a vascular surgeon. Judge Lager then observed:
‘‘While [Dr.] Gorman has treated patients with vascular
problems and knows something about vascular insuffi-
ciency in diabetic podiatric patients [such as Barnes],
he is not a vascular physician or vascular surgeon and
does not perform the types of amputations that [Barnes’
vascular surgeon] performed on Barnes. [The] mere
fact that he is not a vascular physician or surgeon is
not disqualifying. . . . However, in his deposition testi-
mony, [Dr.] Gorman repeatedly deferred to the exper-
tise of a vascular surgeon on the issue of causation.
Both his deposition testimony and the [July 18, 2016
affidavit] support the conclusion that, while it is his
practice to refer patients such as Barnes to a vascular
surgeon in an effort to avoid outcomes such as the one
which occurred in this case, [Dr.] Gorman does not have
any basis other than speculation to render a causation
opinion here. [Dr.] Gorman is unable to pinpoint
whether an alleged breach of the standard of care . . .
or some other underlying condition or behavior led to
the amputations. Finally . . . [Dr.] Gorman could not
identify the specific evidence that he relied upon in the
underlying medical records which eliminate all other
probable causes of the amputations other than [Dr.]
Daddio’s alleged negligence.’’ (Citation omitted; foot-
notes omitted.) Concluding that ‘‘[Dr.] Gorman is insuf-
ficiently qualified to offer an opinion as to the actual
and proximate cause of Barnes’ amputations, that his
opinions admittedly exceed the scope of his expertise
and that his opinions are speculative,’’ Judge Lager pre-
cluded Dr. Gorman’s causation opinion.
The administratrix contends that the record demon-
strates that Dr. Gorman is a board certified podiatrist
with over fifty years of experience in, inter alia, treating
podiatric patients, teaching students, and attending lec-
tures, and that Dr. Gorman was able to testify with
reasonable medical probability that Barnes’ injuries
were caused by an untreated infection that led to addi-
tional complications and, ultimately, the partial amputa-
tions of Barnes’ feet. As reflected in his deposition and/
or in the July 18, 2016 affidavit, however, Dr. Gorman
averred that he did not know whether the partial ampu-
tations of Barnes’ feet could have been prevented and
that a vascular surgeon was needed to opine as to
whether the amputations could have been avoided but
for the defendants’ alleged breach of the standard of
care. The administratrix fails to cite to any portion of
the record undermining Judge Lager’s determination
that Dr. Gorman could not testify that the defendants’
alleged breach of the standard of care led to the partial
amputations of Barnes’ feet. Accordingly, we cannot
conclude that Judge Lager abused her discretion in
precluding Dr. Gorman’s causation opinion.
III
Finally, relying on the presumption that the trial court
erred in precluding Barnes from disclosing additional
experts and Dr. Gorman’s expert opinions as to the
standard of care and causation, the administratrix
claims that there exist genuine issues of material fact
and, thus, Judge Lager improperly rendered summary
judgment in favor of the defendants. This claim merits
little discussion. As set forth in parts I and II of this
opinion, the court acted properly in precluding Barnes
from disclosing additional experts and Dr. Gorman from
offering standard of care and causation opinions. As a
result, Barnes was unable to produce expert testimony
establishing the applicable standard of care, a breach
of the standard of care, and causation, and, therefore,
he could not establish a prima facie case of medical
malpractice. See Procaccini v. Lawrence & Memorial
Hospital, Inc., supra, 175 Conn. App. 717–18; see also
Dorreman v. Johnson, 141 Conn. App. 91, 98–99, 60
A.3d 993 (2013) (affirming summary judgment in favor
of defendant in medical malpractice case where plain-
tiffs failed to provide expert opinions with regard to
requisite standard of care, deviation from standard of
care, and causation). Accordingly, we conclude that
Judge Lager properly rendered summary judgment in
favor of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On December 9, 2016, during the pendency of this appeal, counsel for
the named plaintiff, Kenneth Barnes, filed a suggestion of death indicating
that Kenneth Barnes had died. On September 26, 2017, Kenneth Barnes’
counsel filed a motion to substitute Sherry West Barnes, administratrix of
the estate of Kenneth Barnes, as the plaintiff, which this court granted on
October 27, 2017. For purposes of clarity, we will refer in this opinion to
Kenneth Barnes by his last name and to Sherry West Barnes as the admin-
istratrix.
2
On June 29, 2015, in relation to disciplinary proceedings commenced in
2014; see Chief Disciplinary Counsel v. Hawkins, Superior Court, judicial
district of New Haven, Docket No. CV-XX-XXXXXXX-S; Hawkins permanently
resigned from the Connecticut bar and waived his privilege of applying
for readmission.
3
A recitation of what transpired at the January 11, 2016 hearing is provided
in part I A of this opinion.
4
The defendants also asserted a statute of limitations defense as to both
counts of the amended revised complaint. Barnes subsequently filed a reply
denying the allegations underlying that defense.
5
The expert witness disclosure indicated that Dr. Shah was expected to
testify as to the standard of care as well. At a subsequent hearing before
Judge Lager, Barnes’ counsel clarified that he was seeking to disclose Dr.
Shah as a causation expert only.
6
In a motion in limine filed on April 18, 2016, and supplemented on June
23, 2016, the defendants asserted that Dr. Gorman’s expert opinions failed
to satisfy the requirements of State v. Porter, 241 Conn. 57, 698 A.2d 739
(1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998),
and requested that the court hold a hearing pursuant to Porter. Those claims
were not argued on July 15, 2016, or addressed on the merits in the July
26, 2016 memorandum of decision; instead, Judge Lager scheduled argument
on the Porter issues for August 3, 2016.
7
In rare cases, expert testimony is unnecessary to satisfy the elements
of a medical malpractice claim. See Rosa v. Lawrence & Memorial Hospital,
145 Conn. App. 275, 303–304, 74 A.3d 534 (2013) (‘‘An exception to the
general rule with regard to expert medical opinion evidence is when the
medical condition is obvious or common in everyday life. . . . Similarly,
expert opinion may not be necessary as to causation of an injury or illness
if the plaintiff’s evidence creates a probability so strong that a lay jury can
form a reasonable belief. . . . Expert opinion may also be excused in those
cases where the professional negligence is so gross as to be clear even to
a lay person.’’ [Internal quotation marks omitted.]); Harlan v. Norwalk
Anesthesiology, P.C., 75 Conn. App. 600, 613–14, 816 A.2d 719 (‘‘[e]xcept in
the unusual case where the want of care or skill is so gross that it presents
an almost conclusive inference of want of care . . . the testimony of an
expert witness is necessary to establish both the standard of proper profes-
sional skill or care on the part of a physician . . . and that the defendant
failed to conform to that standard of care’’ [internal quotation marks omit-
ted]), cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003). The administratrix
does not claim that any exceptions apply to negate the necessity of expert
testimony in this case.
8
At the time of argument on the motion to preclude, the trial was scheduled
to begin on January 19, 2016, eight days later.
9
In conjunction with her claim that the January 13, 2016 order was a
sanction of preclusion, the administratrix asserts that the January 13, 2016
order fails to satisfy the test set forth in Millbrook Owners Assn., Inc. v.
Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d 1115 (2001). In Millbrook,
our Supreme Court established that ‘‘[i]n order for a trial court’s order of
sanctions for violation of a discovery order to withstand scrutiny, three
requirements must be met. First, the order to be complied with must be
reasonably clear. . . . Second, the record must establish that the order was
in fact violated. . . . Third, the sanction imposed must be proportional to
the violation.’’ Id. As we have explained in this opinion, the January 13,
2016 order was a case management decision, rather than a sanction entered
as a result of Barnes violating an order. Accordingly, Millbrook is inapposite.
10
The administratrix notes that Judge Lager, during the May 12, 2016
hearing on the defendants’ combined objection to Barnes’ expert witness
disclosure of Dr. Shah and motion to preclude Dr. Shah’s expert testimony,
characterized the January 13, 2016 order as a ‘‘sanction [that Judge Robinson]
could appropriately impose under Practice Book [§] 13-4 (h)’’ and as a
‘‘discovery sanction . . . .’’ Because the construction of the January 13,
2016 order is a question of law subject to our plenary review; In re Jacklyn
H., supra, 162 Conn. App. 830; we do not defer to Judge Lager’s interpretation
of the January 13, 2016 order.
11
We also observe that the issue of precluding Barnes from disclosing
additional experts was raised during argument on the defendants’ motion
to preclude the amendment to Dr. Gorman’s expert witness disclosure. After
Barnes’ counsel had represented that he was considering the possibility of
disclosing additional experts and Judge Robinson had expressed concern
with respect to that representation, the defendants’ counsel stated that she
was also concerned by Barnes potentially seeking to disclose additional
experts and that she objected to any further disclosures.
12
The administratrix also claims that Barnes was harmed as a result of
the January 13, 2016 order. Because we conclude that Judge Robinson did
not abuse her discretion in entering the January 13, 2016 order, we need
not address this claim.
13
In her principal appellate brief, the administratrix also claimed that
Judge Robinson’s March 24, 2016 denial of Barnes’ motion for reargument
and reconsideration of the January 13, 2016 order was erroneous. During
oral argument before this court, however, the administratrix’ counsel stated:
‘‘Now, you know, what we appealed on is Judge Robinson’s decision not
to allow any additional experts. A lot has been made . . . about the forty-
six days between [counsel] making this motion to reargue and it ultimately
being decided by Judge Robinson not to allow reargument. That somehow
or another we did something wrong and that had that been argued or decided
or something had happened earlier there would be a different outcome. You
know, [the administratrix is] not challenging that [Judge Robinson] decided
not to let [counsel] reargue. What [the administratrix is] challenging is that
the initial decision was wrong.’’ We interpret counsel’s statements to be an
abandonment of the administratrix’ claim challenging the denial of the
motion for reargument and reconsideration and, thus, we do not address
that claim.
In addition, without citation to the record, the administratrix claims that
Judge Robinson erred when she purportedly failed to give Barnes a continu-
ance to disclose an additional expert. There is nothing in the record to
indicate that Barnes requested that Judge Robinson grant him a continuance
to disclose an additional expert and, therefore, this claim lacks merit.
14
At the time of argument on March 4, 2016, Barnes had not reclaimed
the motion for reargument and reconsideration of the January 13, 2016 order.
15
As we concluded in part I A 1 of this opinion, the January 13, 2016
order was a case management decision.
16
‘‘The law of the case doctrine provides that when a matter has previously
been ruled upon interlocutorily, the court in a subsequent proceeding in
the case may treat that decision as the law of the case, if it is of the
opinion that the issue was correctly decided, in the absence of some new
or overriding circumstance. . . . The law of the case is not written in stone
but is a flexible principle of many facets adaptable to the exigencies of the
different situations in which it may be invoked. . . . A judge is not bound
to follow the decisions of another judge made at an earlier stage of the
proceedings, and if the same point is again raised he has the same right to
reconsider the question as if he had himself made the original decision.
. . . [O]ne judge may, in a proper case, vacate, modify, or depart from an
interlocutory order or ruling of another judge in the same case, upon a
question of law.’’ (Citations omitted; emphasis omitted; internal quotation
marks omitted.) Levine v. Hite, supra, 189 Conn. App. 297.
17
Section 7-2 of the Connecticut Code of Evidence provides: ‘‘A witness
qualified as an expert by knowledge, skill, experience, training, education
or otherwise may testify in the form of an opinion or otherwise concerning
scientific, technical or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or in determining a
fact in issue.’’
18
General Statutes § 52-184b provides in relevant part: ‘‘(a) For the pur-
poses of this section, ‘health care provider’ means any person, corporation,
facility or institution licensed by this state to provide health care or profes-
sional services, or an officer, employee or agent thereof acting in the course
and scope of his employment. . . .’’
19
Dr. Daddio is a board certified podiatrist and, therefore, the definition
of a ‘‘similar health care provider’’ set forth in subsection (c) of General
Statutes § 52-184c is applicable in the present case. Subsection (b) of § 52-
184c applies only to a ‘‘defendant health care provider [who] is not certified
by the appropriate American board as being a specialist, is not trained
and experienced in a medical specialty, or does not hold himself out as a
specialist’’; (emphasis omitted; internal quotation marks omitted) Grondin
v. Curi, 262 Conn. 637, 650 n.15, 817 A.2d 61 (2003); and, accordingly, that
subsection is not germane here.
20
Section 1-3 of the Connecticut Code of Evidence provides: ‘‘(a) Questions
of admissibility generally. Preliminary questions concerning the qualification
and competence of a person to be a witness, the existence of a privilege
or the admissibility of evidence shall be determined by the court.
‘‘(b) Admissibility conditioned on fact. When the admissibility of evidence
depends upon connecting facts, the court may admit the evidence upon proof
of the connecting facts or subject to later proof of the connecting facts.’’
21
The administratrix also claims that Judge Lager erroneously concluded
that Dr. Gorman failed to meet the requirements of § 52-184c. The administra-
trix apparently overlooks that, as set forth previously in this opinion, Judge
Lager concluded that Dr. Gorman satisfied the requirements of subdivision
(2) of § 52-184c (d).
22
Dr. Gorman testified during his deposition that ‘‘it was [Dr. Daddio’s]
responsibility as the—as we say, captain of the ship, in Pennsylvania, I don’t
know what you have [in Connecticut]’’ and that he had ‘‘no idea’’ whether
Connecticut abided by the same standard.