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Barnes v. Connecticut Podiatry Group, P.C.

Court of Appeals of Connecticut

January 14, 2020

KENNETH BARNES
v.
CONNECTICUT PODIATRYGROUP, P.C., ET AL.

          Argued October 8, 2019

         Procedural History

         Action seeking damages for the defendants' medical malpractice, brought to the Superior Court in the judicial district of New Haven, where the court, A. Robinson, J., precluded certain expert testimony; thereafter, the court, Lager, J., granted the motion for summary judgment filed by the defendants and rendered judgment thereon, from which the named plaintiff appealed to this court; subsequently, this court granted the motion to substitute Sherry West Barnes, the administratrix 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).

          Alvord, Moll and Beach, Js.

          OPINION

          MOLL, J.

         In this medical malpractice action, the substitute 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 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.

         The 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.

         On May 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.

         On 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 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 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.

         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 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, 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 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.

         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 ‘‘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.

         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 January 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 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 Barnes.

         On 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 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 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 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 modified 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 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 defendants' objection and an opposition to the defendants' motion to preclude.

         On March 17, 2016, Barnes filed a request for argument regarding his motion for reargument and reconsideration 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 argument, 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 hearing 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 requirements of General Statutes § 52-184c, there was an insufficient factual basis to determine whether Dr. Gorman knew the prevailing professional standard of care applicable 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 hearing, 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 causation 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 supplemented on August 8, 2016, on the ground that Barnes was unable to produce expert testimony as to the standard of care or causation and, thus, could not demonstrate 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 causation, and (3) as a result of the court's rulings, Barnes lacked the expert opinions necessary to prove the elements 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 governing medical malpractice actions. ‘‘[T]o prevail in a medical 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 knowledge 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 sanction 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 reasons 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 January 11, 2016, the parties appeared before Judge Robinson 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 prejudice, 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 ...


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