Stella v. Spaulding and Fletcher Allen Health Care, Inc.

2013 VT 8, 67 A.3d 247, 193 Vt. 226, 2013 WL 379157, 2013 Vt. LEXIS 7

• Court: Supreme Court of Vermont
• Decided: February 1, 2013
• Docket: 2011-327
• Status: Published

Opinions

Skoglund, J.

¶ 1. In this medical malpractice action, plaintiff appeals the court’s entry of judgment in defendants’ favor following the court’s discovery sanction, which precluded plaintiff from offering expert testimony or evidence regarding defendants’ negligence due to plaintiff’s repeated failure to adequately reply to interrogatories. On appeal, plaintiff argues that the discovery response was sufficient and the court abused its discretion in concluding that more detailed factual information was required. We affirm.

¶ 2. The record reveals the following. Dr. Spaulding performed weight-loss surgery on patient Deborah A. Stella on May 2, 2007 at Fletcher Allen Health Care (FAHC). Patient was subsequently discharged from FAHC and sent to a nursing home to rehabilitate. Dr. Spaulding provided patient with post-operative care, including examining patient’s incision, which showed signs of infection. In June 2007, the nursing home confirmed that patient had contracted a bacterial infection at the incision site. Patient was then treated by various medical professionals at different facilities. Patient died in November 2007 from the infection. In November 2009, plaintiff, as the representative of the deceased patient, filed suit against defendants Dr. Spaulding and FAHC, alleging that Dr. Spaulding had deviated from the acceptable standard of medical care and negligently failed to treat the infection that eventually caused patient’s death. The complaint alleged that patient’s primary care physician, Dr. Stiekney, recommended a course of antibiotics, but Dr. Spaulding instructed that physician not to prescribe any antibiotics.

¶ 3. In January 2010, defendants sent plaintiff a set of interrogatories and requests to produce. Two interrogatories are relevant to this appeal. Interrogatory 64 requested the “identity of experts to be employed at trial of this matter, the subject of their testimony, their opinions and the substance of the facts, which are grounds therefore.” Interrogatory 71 asked plaintiff to state the alleged negligent acts or omissions committed by Dr. Spaulding specified by date and time, how the act impacted patient, and what the proper course of care should have been. In March 2010, the court issued a discovery order. In June 2010, pursuant to the discovery order, plaintiff disclosed that Dr. Stiekney would testify concerning defendants’ failure to treat patient’s infection “and that the failure was a breach of the standard of care and resulted in the death of [patient].”

¶ 4. Meanwhile, on April 20, 2010, defendants filed a motion to compel plaintiff to respond to the interrogatories. On April 22, 2010, plaintiff responded to other interrogatories, but did not identify an expert or respond to Interrogatory 71. On April 30, 2010, defendants sent a letter to plaintiff highlighting inadequacies and insufficiencies in plaintiff’s response to the interrogatories.

¶ 5. Faced with a lack of response, defendants filed another motion to compel, and the court held a hearing on June 16, 2010. At the hearing, the parties discussed several aspects of plaintiff’s discovery response and agreed that plaintiff would sign releases so that defendants could obtain • patient’s medical records. The sufficiency of plaintiff’s expert disclosure apparently was not discussed at the hearing. Later in June, defendants attempted to obtain a more detailed disclosure regarding plaintiffs expert by sending a letter, which requested the dates of defendants’ alleged negligent acts, the specifics of these acts and more information about how those acts led to patient’s death. The letter explained that defendants required this information to assess whether to take Dr. Stickney’s deposition. Plaintiff responded by letter, reiterating that it intended to present testimony from Dr. Stiekney regarding Dr. Spaulding’s negligence in failing to treat patient’s infection but adding none of the specifics requested.

¶ 6. Defendants then filed another motion to compel on July 22, 2010. This motion set forth a detailed chronology of patient’s care. This history is briefly repeated here because it is relevant to the question of whether plaintiff’s answer was complete. Following patient’s surgery on May 2, 2007, she was discharged from FAHC to a local rehabilitation facility. On examination by Dr. Spaulding on May 22, 2007, some wound drainage was noted and a minor wound infection diagnosed. A loose wound packing was prescribed, but no antibiotics. Patient was transferred to a nursing home in Rutland and, on June 1, 2007, Dr. Spaulding’s office was advised that further indications of wound infection existed and that patient’s primary care doctor (presumably Dr. Stickney) had ordered a culture. Three days later, Dr. Spaulding was advised by the nursing home that the culture showed a MRSA infection and that a pharmacy had recommended antibiotic treatment with doxycycline. Dr. Spaulding approved the proposed plan to start patient on a course of that antibiotic. Dr. Stickney’s medical records indicate he ordered the antibiotic that day.

¶ 7. Patient was discharged on June 4, 2007, and returned home. She saw Dr. Stickney on June 26 and at that time her wound appeared sufficiently healed so that the packing could cease. Dr. Spaulding saw patient on July 30 and noted the wound was draining again so she ordered a wound exploration and evacuation for August 13, 2007. On August 8, however, patient suffered a pulmonary embolism and was hospitalized in Rutland. Dr. Spaulding did not treat patient after that time. Patient’s wound infection was noted at the Rutland hospital. Neither her primary care doctor nor the surgeon there prescribed or recommended antibiotics at the hospital or after discharge. Patient was readmitted on two more occasions to the Rutland hospital in September 2007 for matters related to the wound infection. Again, she was not prescribed antibiotics. It was discovered she had developed a MRSA infection of her heart valves. She was transferred to FAHC, but physicians were unable to resolve the infection and she died of sepsis on November 29, 2007.

¶ 8. Defendants’ motion alleged that plaintiff had failed to adequately respond to Interrogatory 71 regarding what specifically was allegedly done wrong by Dr. Spaulding or FAHC, what should have been done, and how the negligent acts altered patient’s outcome. Defendants also claimed that plaintiff had not complied with Vermont Rule of Civil Procedure 26 regarding expert disclosures because there was insufficient information about Dr. Stickney’s opinion. Defendants set forth the following list of questions that remained unanswered:

What does Dr. Stickney claim that Dr. Spaulding should have done, and when? What information does he claim she had about his patient’s [infection]? Why was Dr. Spaulding’s refusal (if in fact there was a refusal) to treat [patient] binding on Dr. Stickney and the other Rutland physicians, including the surgeon who operated on [patient] . . . ? What would the allegedly omitted action have done to avert [patient’s] sepsis? What specific other persons at FAHC does Dr. Stickney claim were in violation of the standard of care? What specifically did they do wrong? What should those persons have done?

¶ 9. Plaintiff did not respond. The court granted the motion on September 8, ordering plaintiff to respond within ten days. Plaintiff then filed a motion for clarification, asserting that an expert disclosure had been supplied and that nothing further was required. The court’s entry order regarding the motion explained that the provision of Dr. Stickney’s file was not sufficient satisfaction of the defendants’ discovery request for the substance of the witness’s expert opinion. It also extended the compliance date.

¶ 10. On October 1, plaintiff filed a supplemental disclosure, which stated that Dr. Stickney’s opinion was that defendants’ refusal to treat patient’s infection caused her to develop sepsis which led to her death. And, that failure to aggressively treat or to allow Dr. Stickney to treat the infection with antibiotics was a breach of the standard of care. Defendants filed a motion to dismiss or for sanctions for plaintiff’s continued refusal to comply with the court’s discovery orders. The court issued an order on March 29, 2011, explaining:

The court accepts that Plaintiff’s counsel disclosed the name of Dr. Stickney as an expert witness on medical negligence on June 1, 2010. However, over 9 months have passed since then, and 13 months have passed since answers to Defendant’s First Set of Interrogatories and Requests to Produce were due, and Plaintiff has not provided the specifics requested in Interrogatories 64 and 71, and has not complied with the two Orders to Compel issued September 8, 2010 and September 21, 2010.

Specifically, Plaintiff has not provided the specifics of Plaintiffs expert’s opinions as to specific acts of negligence and the standard of care and failure to meet the standard of care requested in those two interrogatories. There are no particular dates or acts or incidents of conduct identified in response to Interrogatory 71, and the substance of the disclosed expert’s opinion is described in such general terms that it cannot be connected to any specific acts or incidents.

Defendants, having sought reasonable discovery, are not obliged to incur the costs of a deposition in order to obtain the information requested.

¶ 11. The court sanctioned plaintiff for his noncompliance by precluding plaintiff from using any evidence at trial that was requested in Interrogatories 64 and 71. Unable to submit expert evidence or evidence of defendants’ negligence, plaintiff conceded that it could not oppose a motion for summary judgment. The court granted judgment in defendants’ favor. Plaintiff appeals.

¶ 12. On appeal, plaintiff challenges- the discovery sanction on two grounds. First, plaintiff contends that there was no basis for the July motion to compel because discovery matters were resolved by the June hearing. Second, plaintiff claims that its disclosure was adequate and no further information was required under the applicable rule.

¶ 13. The record does not support plaintiffs first argument that defendants’ July motion to compel was precluded by the court’s oral rulings during the June hearing. The June hearing focused on other discovery matters, including defendants’ attempt to obtain patient’s medical files. At the hearing, the court did not make any ruling on the sufficiency of plaintiffs expert disclosure or completeness of plaintiffs answers to interrogatories. The court’s rulings certainly did not bar further consideration of the adequacy of plaintiffs answers regarding its expert and the substance of the expert’s opinion. See Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 18, 177 Vt. 287, 865 A.2d 350 (explaining that discovery orders “are inherently fluid” and may be “alter[ed] as the litigation unfolds”).

¶ 14. Next, we turn to plaintiffs argument regarding the adequacy of its disclosure and answers to interrogatories. In general, the purpose of discovery is to “make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Meacham v. Kawasaki Motors Corp., 139 Vt. 44, 46, 421 A.2d 1299, 1301 (1980) (quotation omitted). “Discovery is one of the most important legal tools available in the search for truth, the fundamental purpose of litigation. It allows parties to acquire the fullest knowledge of relevant facts so that cases are decided ‘by what the facts reveal, not by what facts are concealed.’ ” Chrysler Corp. v. Makovec, 157 Vt. 84, 89, 596 A.2d 1284, 1287-88 (1991) (quoting Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984)).

¶ 15. As to expert witnesses, Vermont Rule of Civil Procedure 26 specifies:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions as to which the expert is expected to testify and a summary of the grounds for each opinion.

V.R.C.P. 26(b)(4)(A)®. Here, plaintiff challenges both whether the ordered disclosure was required by Rule 26(b)(4)(A)® and whether the court erred in sanctioning plaintiff for noncompliance. The trial court has broad discretion in both areas. We have frequently recognized that “[djiscovery rulings are within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse or withholding of that discretion.” Lamare v. N. Country Animal League, 170 Vt. 115, 124, 743 A.2d 598, 604 (1999). “So long as the trial court had a reasonable basis for its actions, we will not interfere with its discovery rulings even if another court might have reached a different conclusion on the same issue.” State v. Lee, 2007 VT 7, ¶ 11, 181 Vt. 605, 924 A.2d 81 (mem.) (quotation omitted). Further, the trial court may sanction noncompliance with discovery orders by “excluding evidence, granting a continuance, or by taking other appropriate action.” Greene v. Bell, 171 Vt. 280, 283, 762 A.2d 865, 869 (2000). We will not disturb a trial court’s imposition of discovery sanctions absent an abuse of discretion. Id.

¶ 16. On the first question of the scope of Rule 26, we hold that the court did not abuse its discretion in concluding that plaintiff had failed to comply with defendants’ discovery request. Plaintiff failed to provide “the substance of the facts and opinions as to which the expert is expected to testify.” V.R.C.P. 26(b)(4)(A)(i). In answer to defendants’ requests, plaintiff provided little more than what was included in the complaint. Interrogatory 71 specifically asked about plaintiffs theory of the case. Plaintiff failed to answer this question with more than general allegations, making no delineation as to what acts or omissions committed by defendants at particular times were negligent or how those acts led to the patient’s death. Without this disclosure, defendants were hampered in making litigation decisions.

¶ 17. As noted in the Reporter’s Notes to Rule 26, the summary of the expert testimony required in answer to an interrogatory under Rule 26(b)(4) helps parties avoid the expense of unnecessary depositions. The Reporter’s Notes go on to state: “Since the deposition may be taken only after the party has received the summary of the expert testimony required in answer to an interrogatory under Rule 26(b)(4)(A)®, parties will be able to avoid the expense of unnecessary depositions.” Thus, the purpose of Rule 26(b)(4)(A)® is to allow defendants to garner enough information to make a choice about whether and how to take a deposition, but the rule does not assume that a deposition will be taken.¹ Here, the vague disclosures lacked the necessary specificity to allow defendants to assess the need for and, equally important, to prepare to take the expert’s deposition.

¶ 18. It was thus wholly within the court’s discretion to require more specific answers. As a case interpreting the analogous federal rule explained, “liberal discovery of potential expert testimony [is] not merely for convenience of the court and the parties, but [is] intended to make the task of the trier of fact more manageable by means of an orderly presentation of complex issues of fact.” Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457 (2d Cir. 1975) (construing federal rule in effect at that time).² It cannot be argued that the facts sought were irrelevant to defendants’ preparation of the case. The concept behind disclosure of expert testimony is to allow for effective preparation for cross-examination and rebuttal when testimony is of a complex nature. Without the disclosure, defendants were left to speculate on plaintiff’s theory and the grounds for any opinion.³

¶ 19. The dissent construes the court’s order as requiring answers beyond the bounds of Rule 26(b)(4) and thus concludes that the court abused its discretion. The dissent’s recitation of the law is largely correct. We agree that “a party cannot require, by interrogatory, disclosures that are more extensive than provided for in Rule 26(b)(4).” Post, ¶ 27. Certainly, Rule 26(b)(4) places an obligation of disclosure on plaintiff, but also limits the bounds of that disclosure to a specific list of items. In this way, a party may not through interrogatory obtain “all of the details a requesting party might ultimately want to know.” Post, ¶ 29. The critical and limited issue here is whether the interrogatories sought to obtain more than what was required by Rule 26(b)(4).

¶ 20. Defendants asked plaintiff to describe the incidents of negligence committed, the dates of those acts and how those .acts deviated from the standard of care. We agree with the trial court’s assessment that this information was within the bounds of what the rule requires to be disclosed. In the language of the “pivotal case” cited by the dissent, post, ¶ 30, the answers to these questions were relevant to supplying “sufficient notice of the theories under which the [plaintiff planned] to proceed.” Hockley v. Zent, Inc., 89 F.R.D. 26, 30-31 (M.D. Pa. 1980). For example, plaintiff generally asserted that defendants refused to treat patient or to allow Dr. Stickney to prescribe antibiotics, but defendants could properly seek to know when such acts allegedly took place. Further, plaintiff failed to ever identify what persons at FAHC other than the co-defendant were alleged to be at fault. And, plaintiff did not provide any illumination of the critical question of why Dr. Spaulding’s approach would be binding on decedent’s treating physicians. Based on the long interplay between the services provided by Dr. Spaulding and Dr. Stickney, it is apparent why the court ordered a more complete disclosure of Dr. Stickney’s opinions concerning the applicable standard of care and the cause of patient’s death. The case presented a far more complex series of facts than plaintiffs expert disclosure suggested and accordingly more detailed disclosures were properly required. Therefore, it was not error for the court to conclude that these facts were a necessary part of the “substance of the facts and opinions as to which the expert is expected to testify.” V.R.C.P. 26(b)(4)(A)(ii). While a ruling otherwise may also have been within the court’s discretion, the court’s order requiring disclosure of this information did not amount to an abuse of discretion.⁴ See Lee, 2007 VT 7, ¶ 11 (emphasizing trial court’s broad discretion over discovery).

¶ 21. Given plaintiffs failure to comply with the court’s several orders to answer the interrogatories and to supplement the expert disclosure and the length of time that had passed, it was also within the court’s discretion to sanction plaintiff for failing to comply. See Follo v. Florindo, 2009 VT 11, ¶¶ 19-21, 185 Vt. 390, 970 A.2d 1230 (holding that court did not abuse its discretion in sanctioning defendants by precluding use of expert testimony when defendants did not respond for five months after discovery deadline). The court responded to plaintiffs failure to comply with the court’s order to completely answer the interrogatories by precluding plaintiff from submitting evidence related to those interrogatories. This sanction was within the court’s power and was not “untenable” or “unreasonable.” White Current Corp. v. Vt. Elec. Coop., Inc., 158 Vt. 216, 223, 609 A.2d 222, 226 (1992) (explaining that court’s use of sanctions will be upheld unless “discretion was either totally withheld or exercised on grounds clearly untenable or unreasonable” (quotation omitted)).

¶ 22. The dissent asserts that the court’s chosen sanction was beyond its discretion because the sanction essentially amounted to dismissal.⁵ “When a trial court imposes the ultimate sanction of dismissal, we require findings of fact to show bad faith or deliberate and willful disregard of the court’s orders, as well as prejudice to the opposing party.” Lee, 2007 VT 7, ¶ 17. We disagree that the court in this instance was required to make these special findings because no dismissal was imposed. Our cases have carefully distinguished those cases where a sanction of dismissal or default is imposed from situations where the sanction effectively results in dismissal. Although a sanction may have a similar effect, no special findings are required when there is no outright dismissal or default. State v. Howe Cleaners, Inc., 2010 VT 70, ¶ 19, 188 Vt. 303, 9 A.3d 276. “In short, no special findings of bad faith or prejudice, or exhaustion of lesser sanctions, are required for anything less than the ultimate sanctions of dismissal or default ...” Id. ¶ 22. Because the sanction in this case precluded plaintiff from offering certain evidence, but was not a dismissal, no special findings were required.

Affirmed.

1 The dissent emphasizes that the Reporter’s Notes recognize the “reality that requesting and taking depositions of trial experts has become standard practice,” but when read in context this statement is not a recognition that a deposition must be taken to reveal the plaintiff’s theory of the ease. See Reporter’s Notes — 1996 Amendment, V.R.C.P. 26. This comment was made in conjunction with an amendment in 1996 that adopted some of the 1993 amendments to the federal rules, including eliminating the requirement of court approval for discovery from experts to be called at trial.

2 Vermont Rule of Civil Procedure 26 is very similar to the federal rule in effect from 1970 to 1993. Reporter’s Notes, V.R.C.P. 26 (explaining that when enacted Rule 26 was based on federal rule that was effective July 1, 1970).

3 The dissent’s conjecture that Dr. Stickney’s opinions arose as a fact witness and should not have been viewed as expert disclosures is a matter that was neither argued below nor raised on appeal, and therefore we do not address it.

4 Trial court discretion over discovery is necessary given the differences presented by the particular facts of each case. Although the dissent focuses on those cases where courts have denied motions to compel and deemed answers to expert interrogatories adequate, other courts have required more comprehensive answers in response to motions to compel. See, e.g., Kane Gas Light & Heating Co. v. Pennzoil Co., 99 F.R.D. 614, 615 (W.D. Pa. 1983); Lawson v. Consol. Rail Corp., No. 87C-JN-3, 1990 WL 91091, at *2 (Del. Super. Ct. June 8, 1990). The trial court must have the ability to manage gamesmanship on both sides by exercising its discretion in response to the particular situation presented to it.

5 The dissent’s recitation of other possible sanctions does not mean that the court’s chosen sanction was error.