Supreme Court
Lauren Barnes : No. 2022-43-M.P. (PC 16-2181) v. :
Nancy Hodys. :
Nancy Hodys et al. : No. 2022-44-M.P. (PC 17-5776) v. :
Lauren Barnes. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, JJ.
OPINION
Chief Justice Suttell, for the Court. These consolidated cases are before the
Court on a writ of certiorari. The cases arise out of an automobile accident involving
Lauren Barnes and Nancy Hodys.1 Barnes seeks review of a Superior Court order
denying her request to modify the case’s scheduling order, which prohibited her
from either replacing a particular expert witness or “disclosing any additional expert
witness(es) in the field[s] of toxicology, pharmacology or other similar specialty.”
1 There are two Superior Court cases under review. In PC 16-2181, Lauren Barnes is plaintiff and Nancy Hodys is defendant. In PC 17-5776, Nancy Hodys and her husband, Jack Hodys, are plaintiffs and Lauren Barnes is defendant. Although Nancy Hodys and Jack Hodys share a last name, because Jack Hodys is a less central figure to the case at bar, we refer to Nancy Hodys by her last name and to Jack Hodys by his full name. No disrespect is intended.
-1- This Court issued a writ of certiorari and directed the parties to appear and show
cause why the issues raised should not be summarily decided. After considering the
parties’ written and oral submissions and carefully reviewing the record, we
conclude that cause has not been shown and that this case may be decided without
further briefing or argument. For the reasons set forth herein, we quash the order of
the Superior Court and remand to that tribunal with instructions that it conduct a
meaningful analysis of the issues raised, consistent with this opinion.
I
Facts and Travel
On December 14, 2014, Barnes and Hodys were involved in a head-on
automobile collision on Putnam Pike in Glocester, Rhode Island. Both sustained
serious, life-threatening injuries. Neither has any memory of the accident. Each was
discovered unconscious and had to be extracted from her vehicle by first responders.
According to Paul Silva, an EMT who provided deposition testimony
concerning his observations at the scene of the accident, a syringe was found in
Barnes’ car.2 Silva reportedly noticed a so-called “track mark”—scarring that is
commonly associated with habitual intravenous drug use—on Barnes’ arm, as well
2 We were not provided with Silva’s deposition testimony or a related EMS report and could not locate either in the record. Our discussion of these matters thus derives from Dr. Benjamin’s report and deposition testimony, where he described these observations.
-2- as a “slight improvement” in her “level of consciousness” after she was administered
Narcan, a drug used to reverse the effects of narcotics. Barnes’ urine later tested
positive for opioids and benzodiazepines.
On May 13, 2016, Barnes filed a complaint against Hodys in Providence
County Superior Court, alleging that Hodys’ car crossed the double-yellow line and
caused the collision. She claimed that Hodys’ negligence was the cause of her
“personal injuries, permanent injuries, emotional trauma, pain and suffering, lost
wages, lost earning capacity, and property damage.” Hodys filed an answer on
August 2, 2016, denying Barnes’ claims and asserting various affirmative defenses,
including an allegation that Barnes was intoxicated at the time of the crash.
On December 1, 2017, Hodys, joined by her husband, Jack Hodys, filed a
complaint against Barnes. Hodys alleged that Barnes’ negligence caused the
accident, resulting in Hodys’ extensive personal injuries and Jack Hodys’ loss of
consortium. Barnes filed an answer on December 19, 2017. An order consolidating
the two cases in the Superior Court was entered on February 22, 2018.
Among other contentious questions of fact, the parties disputed whether
Barnes was intoxicated at the time of the collision. Barnes represented that she
planned to challenge the admissibility of evidence of her alleged narcotics use in a
pretrial hearing in accordance with Handy v. Geary, 105 R.I. 419, 252 A.2d 435
(1969). See Handy, 105 R.I. at 431, 252 A.2d at 441-42 (requiring a preliminary
-3- evidentiary hearing regarding actual intoxication before evidence of the
consumption of an intoxicant can be admitted). To that end, Barnes engaged David
M. Benjamin, Ph.D., as an expert witness in August 2018. Doctor Benjamin is a
Doctor of Pharmacology with postdoctoral training in clinical pharmacology and
pharmacokinetics.
Doctor Benjamin provided Barnes with a report on March 3, 2020. Relying
on an EMS report, Barnes’ Rhode Island Hospital records, Silva’s deposition, and
Dr. Benajmin’s own expertise in pharmacology and the interpretation of urine drug-
screen results, Dr. Benjamin concluded that it was “not possible to determine”
whether head trauma, controlled substances, or medication caused the “impairment”
that medical personnel observed in Barnes after the accident. He opined that
symptoms of Barnes’ serious head injury would be “indistinguishable” from the
effects of controlled substances and discounted the urine drug-screen results as
evidence of mere “prior exposure” to substances that could have been “ingested days
earlier.” (Emphasis omitted.) He also claimed that Narcan would have caused
Barnes’ level of consciousness to “improve significantly,” rather than just slightly,
if opioids were the cause of her post-accident impairment. For her part, Hodys
engaged a pharmacology expert, Errol Green, M.D., to testify that “drugs taken by
Ms. Barnes prior to the accident (such as [h]eroin) contributed to the positive urine
opioid screen result.”
-4- On June 12, 2020, Barnes moved to set a scheduling order for fact discovery,
expert disclosures, and dispositive motions. Hodys filed a limited objection, but did
not object to Barnes’ proposed timeline for expert witness discovery. On September
24, 2020, a scheduling order with deadlines for expert disclosures and discovery
entered by agreement of the parties.
In compliance with this original scheduling order, Barnes served Hodys with
her expert disclosures before the agreed-upon deadline in January 2021. The parties
thereafter agreed to extend the timeline as to Hodys’ experts and any rebuttal experts,
as well as to overall expert discovery and dispositive motions. The parties agreed to
push the overall expert discovery date back twice more, resulting in a final deadline
of January 15, 2022.
On November 10, 2021, Hodys deposed Dr. Benjamin in a videoconference.
Hodys drew Dr. Benjamin’s attention to Silva’s deposition testimony, and
particularly to his observations of a syringe in Barnes’ car and a track mark on
Barnes’ arm. Doctor Benjamin acknowledged that he was aware of these facts.
When asked whether it was his opinion that it was “not possible to determine
whether [Barnes’ post-accident] impairment was because of drugs, medication, or a
brain injury[,]” as he had previously concluded in his report, Dr. Benjamin
responded that it could have resulted from “any or all” of these potential causes, but
then elaborated that “a combination” was “the most likely explanation.” When
-5- asked to confirm that he believed that “a combination of drugs and brain injury” was
“the most likely explanation” for her impairment, Dr. Benjamin did so, positing that
he formed this opinion based on the materials he reviewed, “the knowledge of the
symptoms and signs * * * in the record, * * * the medications that she received, and
the fact that she had very severe head trauma.”
After further questions regarding when Barnes could have consumed
controlled substances, as well as objections from Barnes, Dr. Benjamin affirmed that
he believed Barnes to have been impaired by controlled substances at the time of the
accident. Under direct examination by Barnes, Dr. Benjamin asserted that he not
only knew the cause of Barnes’ post-accident impairment, but that it arose from
“both trauma from the accident, and possibly some contributing factors from any
medications she might have taken prior to driving.” Thereafter, on November 30,
2021, Hodys filed motions to assign the case to the continuous jury-trial calendar
and to accelerate the matter.
On December 22, 2021, Barnes filed a motion to modify the case scheduling
order, specifically requesting “leave to replace her expert, Dr. David Benjamin.”
Barnes’ counsel represented that, due to ongoing medical issues, Dr. Benjamin was
unable to continue serving as an expert witness. In a sworn affidavit attached as an
exhibit to the motion, Barnes’ counsel stated that he had communicated with
Dr. Benjamin about his expert opinion at least ten times between August 2018 and
-6- the deposition, that Dr. Benjamin had “consistently opined that no scientifically
reliable conclusions could be made regarding the cause of [Barnes’] post-accident
impairment[,]” and that Dr. Benjamin’s deposition testimony on this point was
“contrary to all prior discussions” with counsel. Counsel’s affidavit also averred
that, on November 12, two days after the deposition, he spoke to Dr. Benjamin over
the phone “to inquire about his unexpected ‘change’ of opinion,” at which point
Dr. Benjamin “disclosed” the following: that Dr. Benjamin “suffers from multiple
myeloma, a type of cancer”; that “[h]is condition and the medication he takes for the
same, cause him confusion, memory issues, and fatigue”; that his deposition
testimony “was inadvertent and directly caused by his medical condition and/or
medication”; and, finally, that “[h]e is unable to continue serving as a witness in this
case.”
Barnes also filed Dr. Benjamin’s report, the deposition transcript, and an
email thread between counsel and Dr. Benjamin as exhibits to the motion. The email
exchange, dated November 12, contained counsel’s recitation of many of the
circumstances asserted in the affidavit, along with a request that Dr. Benjamin
“[p]lease confirm the above.” Doctor Benjamin’s reply stated that he had “been
struggling with multiple myeloma, a type of blood cancer, for approximately [ten]
years[,]” that this disease and related medications caused him to experience
“lethargy, confusion and memory problems[,]” and that his symptoms had “not been
-7- a problem to [his] work in the past, but recently * * * [had] intensified and caused
[him] some problems with [his] memory.”
In her memorandum of law in support of the motion, Barnes argued that the
scheduling order should be modified because: (1) with no trial date set, there
remained “ample time” for a new expert to be named and deposed; and (2)
Dr. Benjamin’s “inability” to proceed was both “unforeseeable” and “entirely out of
[Barnes’] control.” She based this argument on nonbinding Superior Court caselaw,
as well as Allen v. South County Hospital, 945 A.2d 289 (R.I. 2008), Bergeron v.
Roszkowski, 866 A.2d 1230 (R.I. 2005), and Mills v. State Sales, Inc., 824 A.2d 461
(R.I. 2003), seemingly not for their holdings, but as examples of cases where, at
some point in the procedural history, a trial justice allowed a party to replace an
expert witness or add a new one. See Allen, 945 A.2d at 292 (trial justice
conditionally vacated judgment of dismissal after the plaintiff secured replacement
expert witness); Bergeron, 866 A.2d at 1233 (trial justice allowed the plaintiff to
substitute expert witness, subject to conditions); Mills, 824 A.2d at 466 (trial justice
allowed the plaintiff to add a new expert witness after scheduling order deadline had
passed).
On January 4, 2022, Hodys filed an objection to Barnes’ motion to modify the
scheduling order. Hodys claimed that Barnes was trying to replace Dr. Benjamin
not because he was medically unavailable, but rather “because his deposition
-8- testimony was detrimental to her case.” She vigorously disputed that Dr. Benjamin
was unable to proceed as an expert, charging that there was “no credible medical
evidence” supporting his unavailability. She asserted that Dr. Benjamin “continues
to market his services as an expert on the internet” and that he “assuredly continues
to serve as a consulting expert/expert witness in other cases.” She provided neither
exhibits nor more detailed factual allegations to substantiate Dr. Benjamin’s
purported continued online advertising or expert work. Hodys also contested that
Dr. Benjamin’s deposition testimony was influenced by a medical condition or
medications, maintaining that any change in his opinion “was the product of
effective cross-examination,” specifically, confrontation “with the multitude of
evidence of Ms. Barnes’ drug use prior to the accident”—evidence that Hodys
posited Dr. Benjamin was either “not provided” by Barnes or which he previously
“chose not to consider.” Hodys additionally observed that Dr. Benjamin’s
deposition testimony was consistent with her own pharmacology expert’s opinion.
Hodys urged the hearing justice to reject Barnes’ explanation for her request
to replace Dr. Benjamin. She argued that it was “literally unbelievable” that
Dr. Benjamin could have experienced “symptomology of the type described” to the
extent that it would interfere with his testimony or ability to continue as an expert
witness “without [his] ever disclosing the same to counsel, or counsel ever even
noticing [Dr. Benjamin’s symptoms] at any point during [their] numerous
-9- communications.” She described Barnes’ counsel’s sworn representation that he
became aware of Dr. Benjamin’s medical issues for the first time soon after
Dr. Benjamin’s deposition as “similarly lack[ing] credibility.”
Hodys also posited that allowing Barnes to replace Dr. Benjamin would
“unfairly prejudice” her, given that Dr. Benjamin’s deposition was “highly
successful” and produced testimony that “will be of critical assistance” to her case.
She argued that Barnes should not be allowed to replace Dr. Benjamin “simply
because his deposition testimony was detrimental to her case[,]” contending that
such a decision “would mean that anytime an attorney successfully cross-examines
an opposing party’s expert witness, the opposing party can simply replace the
compromised expert with a new one and start fresh with a clean slate and the added
benefit of being well-versed in the attorney’s mental impressions and case strategy.”
Hodys sought to distinguish Allen and Bergeron by renewing her assertion
that Dr. Benjamin was not truly medically unavailable and by characterizing the trial
justices in those cases as having allowed replacement experts only subject to “several
conditions.” See Allen, 945 A.2d at 292; Bergeron, 866 A.2d at 1233. She
commented that, while the expert witness in Allen unexpectedly “abandoned” the
plaintiff’s “litigious ship,” justifying the subsequent vacation of a judgment of
dismissal, Barnes was seeking “to throw [Dr. Benjamin] overboard because his
- 10 - deposition testimony turned out to be detrimental to her case * * *.” (Quoting Allen,
945 A.2d at 290.)
On January 5, 2022, the day after Hodys submitted her objection asserting that
Dr. Benjamin was not truly medically unavailable, Barnes filed a statement signed
by Dr. Benjamin, “subject to the pains and penalties of perjury,” but not notarized.
Doctor Benjamin’s statement hewed closely to the content and language of Barnes’
counsel’s affidavit. Among other things, Dr. Benjamin averred both that his
“inconsistent testimony was brought on by” his medical condition and the side
effects of his medications and that he could not “at this time competently testify in
[his] current medical condition.”
The parties appeared before the hearing justice on January 13, 2022. At the
hearing, Barnes and Hodys largely repeated their written arguments. Barnes claimed
that “our courts are clear that if an expert cannot proceed, whether it’s due to illness
or even a refusal to testify, a replacement must be allowed.” Barnes also emphasized
that, without a modification to the scheduling order, she would be “left without an
expert” on the issue of intoxication, which she characterized as “the issue of the
Hodys continued to deny that Dr. Benjamin’s testimony was affected by his
medical condition and that he was now unavailable to serve as an expert. She argued
that Dr. Benjamin’s behavior and demeanor in the deposition belied the assertion
- 11 - that he was feeling the effects of any disabling symptoms or medication side effects.
She also noted that Barnes had provided no evidence that Dr. Benjamin had ceased
his other work as an expert witness or as faculty at Northeastern University. Hodys
did not, however, submit any exhibits or provide any more detailed factual
allegations to substantiate her claim that Dr. Benjamin continued to work as an
expert witness.
Barnes responded that she would “understand” Hodys’ argument if she “just
didn’t like the testimony that came out[,]” but directed the hearing justice to
Dr. Benjamin’s sworn statement, claiming that Dr. Benjamin “sinks his career by
setting forth the facts” in that document.
The hearing justice then announced his decision, stating tersely: “I’ve heard
the oral arguments of both parties in the case and I’ve read the documents. And
based upon that, I’m [g]oing to deny the motion at this time.” The corresponding
order, entered January 21, 2022, charged that “the Scheduling Order shall not be
modified and that [Barnes] is precluded from replacing her expert, David M.
Benjamin, Ph. D[.], and/or disclosing any additional expert witness(es) in the field[s]
of toxicology, pharmacology or other similar specialty.” In another order entered
on the same day, the hearing justice denied Hodys’ motion to assign the case to the
trial calendar.
- 12 - Barnes filed a petition for a writ of certiorari on February 8, 2022. On June
9, 2022, Hodys again moved to assign the case to the trial calendar and to accelerate
trial. Hodys’ trial calendar assignment and acceleration requests were granted, over
Barnes’ objection, in separate orders entered on July 8, 2022. This Court granted
Barnes’ petition on November 29, 2022.
II
Standard of Review
“It is well settled that this Court’s ‘review of a case on certiorari is limited to
an examination of the record to determine if an error of law has been committed.’”
State ex rel. Coventry Police Department v. Charlwood, 224 A.3d 467, 469-70 (R.I.
2020) (quoting Sandy Point Farms, Inc. v. Sandy Point Village, LLC, 200 A.3d 659,
662 (R.I. 2019)). “When conducting such a review, this Court does not ‘weigh the
evidence on certiorari,’ but rather, limits its review to ‘questions of law raised in the
petition.’” Id. (quoting Sandy Point Farms, Inc., 200 A.3d at 662).
“This Court consistently has held that ‘the Superior Court has broad discretion
to regulate how and when discovery occurs.’” Albanese v. Town of Narragansett,
135 A.3d 1179, 1185 (R.I. 2016) (brackets omitted) (quoting Shelter Harbor
Conservation Society, Inc. v. Rogers, 21 A.3d 337, 343 (R.I. 2011)). “We will not
disturb a trial justice’s decision relating to discovery save for an abuse of that
discretion.” DiSano v. Argonaut Insurance Company, 178 A.3d 982, 986 (R.I. 2018)
- 13 - (brackets omitted) (quoting Dawkins v. Siwicki, 22 A.3d 1142, 1150 (R.I. 2011)).
Furthermore, a discretionary ruling “will be sustained provided the discretion has
been soundly and judicially exercised, that is, if it has been exercised in the light of
reason applied to all the facts and with a view to the rights of all the parties to the
action, and not arbitrarily or willfully, but with just regard to what is right and
equitable under the circumstances and the law.” In re Mackenzie C., 877 A.2d 674,
684 (R.I. 2005) (deletion omitted) (quoting Owens v. Silvia, 838 A.2d 881, 890 (R.I.
2003)).
III
Discussion
We now consider whether the hearing justice erred in denying Barnes’ request
to modify the scheduling order so that she could replace her expert witness. Before
this Court, Barnes argues that the hearing justice abused his discretion because: (1)
replacement of the expert would not prejudice Hodys; (2) Barnes has a “meritorious
explanation” for seeking to replace Dr. Benjamin, specifically his medical
unavailability; (3) the decision on the motion “was devoid of any explanation or
weighing of the parties’ positions”; and (4) precluding a replacement expert on the
“key issue” of intoxication would deprive Barnes of a fair trial.
Hodys counters that the hearing justice did not abuse his discretion,
contending that he properly denied the motion after rejecting Barnes’ contention that
- 14 - Dr. Benjamin was medically unavailable. She posits that the hearing justice
appropriately recognized that there was no meritorious explanation for replacing
Dr. Benjamin and that allowing a replacement expert would have resulted in
“substantial unfair prejudice” to Hodys.
As a preliminary matter, we note the arguments that we will not consider due
to waiver. For the first time before this Court, Barnes asserts that Hodys’
presentation of “uncontroverted expert testimony” regarding intoxication will
deprive her of a fair trial by “inflaming” the jury and “distracting from the merits of
the case * * *.” Barnes did not raise any concerns about her right to a fair trial in
her written or oral submissions to the hearing justice. “Accordingly, pursuant to one
of our most well-established principles (the raise or waive rule), [this] argument[]
will not be considered by us.” Decathlon Investments v. Medeiros, 252 A.3d 268,
270 (R.I. 2021) (quoting Pollard v. Acer Group, 870 A.2d 429, 432 (R.I. 2005)).
Hodys’ argument concerning Rule 40(c) of the Superior Court Rules of Civil
Procedure is similarly waived. Rule 40(c) requires that “[a] motion for a continuance
on the ground of sickness of a party or witness shall be accompanied by a certificate
of a practicing physician stating the fact of said sickness, and the kind, degree, and
the time of beginning thereof.” Super. R. Civ. P. 40(c). Hodys draws our attention
to this rule, commenting that it “provides at least some mechanism for verifying and
supporting [a] claim for medical unavailability” beyond a witness’s
- 15 - “self-proclamation.” Given that this issue was never presented to the hearing justice,
we will not consider it here. See Decathlon Investments, 252 A.3d at 270.
We will also only briefly address Mills and Bergeron, which Barnes brings
forward apparently as examples of cases where a trial justice allowed an expert to
be replaced; Mills and Bergeron concern, in relevant part, a trial justice’s decision
to grant or deny a trial continuance. See Mills, 824 A.2d at 469-70 (finding no abuse
of discretion in denying a motion for a continuance, where denial of a continuance
did not present an insurmountable bar to the plaintiff’s success); Bergeron, 866 A.2d
at 1236 (same). In the case at bar, the motion at issue did not request a trial or
hearing continuance, and the case had not progressed to the trial calendar. We will
not further discuss these procedurally inapposite cases.
Our task at hand on a writ of certiorari is to scour the record to determine if
an error of law has been committed. See Noonan v. Sambandam, 296 A.3d 670, 673
(R.I. 2023). We need not tarry long; the error lies in the very brevity of the hearing
justice’s decision. The parties do not contest, nor could they, that the hearing justice
failed to provide any rationale for his decision on the record. Barnes argues that this
lack of explanation constitutes an abuse of discretion, which Hodys disputes.
Among other arguments, Hodys suggests that we should not find an abuse of
discretion because busy hearing justices often grant or deny requests from parties in
this summary fashion.
- 16 - We have previously cautioned, however, that a trial justice errs when she
“provide[s] no reasoning as to her decision.” See Noonan, 296 A.3d at 674 (“[T]he
trial justice provided no reasoning as to her decision. This was error.”); see also
Fisher v. Lau, 291 A.3d 1261, 1262 (R.I. 2023) (mem.) (remanding, explaining that
“[t]he trial justice’s decision * * * [was] devoid of any meaningful analysis” and that
“our examination of the record and decision [was] hampered by this vacuum”);
Fitzpatrick v. Pare, 552 A.2d 1185, 1186 (R.I. 1989) (remanding, holding that the
Court was “unable to reach the merits of the petitioner’s contentions” because the
“District Court’s decision * * * [was] devoid of any supportive reasoning” and
therefore “intelligent appellate review [was] impossible”).
Given that we have no way to discern how the hearing justice came to his
decision, we cannot say that his discretion was “exercised in the light of reason
applied to all the facts and with a view to the rights of all the parties to the action
* * *.” In re Mackenzie C., 877 A.2d at 684. We cannot find a reasoned exercise of
discretion without some hint as to how that discretion was exercised.
Additionally, we have previously expressed our preference for a more
comprehensive record of a trial justice’s rationale where the decision will have a
clear and significant preclusive effect. In BHG, Inc. v. F.A.F., Inc., 784 A.2d 884
(R.I. 2001), we faulted a trial justice’s cursory, one-line decision granting a motion
in limine that effected a de facto motion for summary judgment. BHG, Inc., 784 A.2d
- 17 - at 887. There, we advised that the “better practice” when deciding an ostensibly
nondispositive motion with “a potentially preclusive effect of this magnitude would
have been for the trial justice to have carefully set forth the reasons for her order
* * *.” Id. at 887-88. Given the apparent and substantial preclusive effect of
prohibiting Barnes from replacing Dr. Benjamin or disclosing any additional experts
in related fields, there was cause for the hearing justice to exercise greater care in
laying out the rationale for his decision.
Hodys maintains that there is enough in the record for us to both discern how
the hearing justice exercised his discretion and to determine that he did so properly.
She asks us to assume that, simply because the hearing justice denied Barnes’
motion, and despite the lack of any supporting language in his decision, the hearing
justice must have “rejected” Barnes’ representation that Dr. Benjamin was medically
unavailable. Hodys also invites us to suppose that the hearing justice based this
purported rejection on a lack of evidence of Dr. Benjamin’s medical condition, the
fact that Barnes asked to replace Dr. Benjamin shortly after his deposition, and what
Hodys characterizes as “the obvious fact” that Dr. Benjamin continues to work as an
expert in other cases. We decline to draw such conclusions from a silent record.
If the hearing justice indeed founded his denial of the motion on a belief that
counsel sought to deceive him in an affidavit and a sworn statement, in violation of
counsel’s duty of candor toward the tribunal, we would expect such a finding to
- 18 - appear on the record. See Article V, Rule 3.3 of the Supreme Court Rules of
Appellate Procedure (“Candor toward the tribunal.”). “The Rules of Professional
Conduct are in place not solely to protect individual clients but also to protect the
integrity of the judicial system itself.” In re McKenna, 110 A.3d 1126, 1150 (R.I.
2015).
We are particularly disinclined to assume that the hearing justice based his
decision on a rejection of Dr. Benjamin’s unavailability given the evidence that was
before him. Hodys did not provide the hearing justice with any exhibits to
substantiate her claims about Dr. Benjamin’s availability. She also did not disclose
a factual basis for her allegations, beyond an account of Dr. Benjamin’s conduct at
the deposition and a bare assertion that Dr. Benjamin “continues to market his
services as an expert on the internet * * *.” Indeed, many of her arguments on this
point were openly speculative, e.g.: “I can all but guarantee that if I called
Dr. Benjamin today and asked him to serve as a consulting expert on a case and was
willing to stroke him a retainer check, he would absolutely take on the case.” The
evidence before the hearing justice on this issue thus amounted to the affidavit of
Barnes’ counsel and the statement of Dr. Benjamin, both of which attested to
Dr. Benjamin’s unavailability. For the first time before this Court, Hodys provides
screenshots of Dr. Benjamin’s website in an appendix to her briefing. This evidence
was not presented to the hearing justice and is not part of the record on appeal. We
- 19 - shall not consider it here. See, e.g., Hagopian v. Hagopian, 960 A.2d 250, 254 (R.I.
2008) (declining to consider evidence not presented to the trial justice).
The hearing justice’s decision was devoid of analysis and does not allow us
to discern the facts relied upon in reaching that decision. Thus, review by this Court
is premature. See Fisher, 291 A.3d at 1262.
IV
Conclusion
For the reasons stated herein, we quash the order of the Superior Court
denying Barnes’ motion to modify the scheduling order and precluding her from
replacing her expert witness and/or disclosing any additional expert witnesses. We
further remand to the Superior Court with instructions to conduct a meaningful
analysis of the issues raised, consistent with this opinion. The hearing justice may,
in the exercise of his sound discretion, rely on the existing record or accept additional
evidence.
Justice Lynch Prata and Justice Long did not participate.
- 20 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Lauren Barnes v. Nancy Hodys. Title of Case Nancy Hodys et al. v. Lauren Barnes. No. 2022-43-M.P. (PC 16-2181) Case Number No. 2022-44-M.P. (PC 17-5776)
Date Opinion Filed January 23, 2024
Justices Suttell, C.J., Goldberg, Robinson, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice R. David Cruise
For Plaintiff/Defendant:
Robert E. Craven, Esq. Attorney(s) on Appeal For Defendant/Plaintiff:
Mark P. Dolan, Jr., Esq.
SU-CMS-02A (revised November 2022)