October 8, 2019.
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from the Superior Court in the judicial district of New
Haven, A. Robinson, J., Lager, J.
R. Mirrione, for the appellant (substitute plaintiff).
M. Costello, for the appellees (defendants).
Alvord, Moll and Beach, Js. MOLL, J. In this opinion the
other judges concurred.
Conn.App. 214] MOLL, J.
medical malpractice action, the substitute plaintiff, Sherry
West Barnes, administratrix of the estate of Kenneth Barnes
(administratrix), 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, [195 Conn.App. 215] A. Robinson,
J., erred in precluding Barnes from disclosing
additional experts, and (2) the court, Lager, J.,
erred in (a) adhering to Judge Robinson's order
precluding Barnes from disclosing additional experts, (b)
precluding 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.
following facts and procedural history are relevant 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 specialist, resulting, inter alia, in the partial
amputations of Barnes' feet. On April 26, 2012, the
defendants answered the revised complaint, denying the
material allegations therein.
3, 2012, Barnes filed an expert witness disclosure
identifying Jack B. Gorman, a podiatrist practicing in
Pennsylvania, as his expert on the standard of care and
causation. The disclosure indicated that Dr. Gorman was
expected to testify that the defendants deviated from the
applicable standard of care by failing to suspect and rule
out the possibility of " vascular compromise" 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.
June 25, 2013, the trial court, A. Robinson, J.,
approved a scheduling order, inter alia, setting September 1,
2013, as the deadline by which Barnes had to [195 Conn.App.
216] 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.
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 Robinson issued an order declining to
preclude Dr. Gorman'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
defendants were not required to remit a prepayment.
Notwithstanding the court's order, Dr. Gorman was not
deposed on or before May 14, 2014.
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. 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 separate 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,
[195 Conn.App. 217] 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.
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 management 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.
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 " gangrenous
changes," the defendants failed to " take an
adequate 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.
November 24, 2015, the defendants filed a motion to preclude
the amendment to Dr. Gorman's expert witness disclosure,
to which Barnes objected. On January 13, 2016, after hearing
argument on January 11, 2016, Judge Robinson issued an
order denying, without prejudice, the motion to preclude.
Judge Robinson [195 Conn.App. 218] determined that Barnes
should be allowed to supplement Dr. Gorman's testimony,
provided that Dr. Gorman be made available for a deposition
within fourteen days of the order. Additionally, Judge
Robinson ordered that Barnes was " precluded from
disclosing any additional 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
January 19, 2016, Barnes filed a motion for reargument and
reconsideration of the portions of Judge Robinson's
January 13, 2016 order precluding him from disclosing any
additional experts and requiring Dr. Gorman's deposition
to be conducted within fourteen days of the order. The
defendants filed an objection to that motion later on the
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 deviated 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 " gangrenous changes," they failed to "
take an adequate history and physical and [to] order
antibiotics or other appropriate tests," (5) they failed
to communicate with [195 Conn.App. 219] 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.
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 modified scheduling order did not contain
any provision for the disclosure of additional experts by
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. On March 11, 2016, the
defendants filed a combined objection to the expert witness
disclosure 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 ...