MONTPELIER, Vermont (Legal Newsline) – The Vermont Supreme Court affirmed the trial court’s entry of judgment to the defendants in a medical malpractice action due to the plaintiff’s repeated failure to adequately respond to discovery interrogatories.
Justice Marilyn Skoglund wrote the opinion for the 3-2 majority and Justice Beth Robinson wrote a dissent. Skoglund was joined by Justices Brian Burgess and Judge Robert Bent, who was specially assigned. Robinson was joined in dissent by Justice John Dooley.
Dr. Laurie Spaulding performed weight-loss surgery on Deborah A. Stella on May 2, 2007. The operation was performed at Fletcher Allen Health Care.
Stella was discharged to a nursing home to rehabilitate and in June 2007 the nursing home confirmed Stella had contracted a bacterial infection at the incision site. After treatment by various medical professionals, Stella died from the infection in November 2007, according to the opinion.
In November 2009, Albert Stella, as representative of the deceased, filed suit against Spaulding and Fletcher Allen Health Care alleging that the deceased’s primary care physician, Dr. Stickney had recommended a course of antibiotics, but Spaulding instructed him not to prescribe any antibiotics.
In January 2010, defendants sent plaintiff a set of interrogatories and request to produce. Interrogatory 64 requested the identity of experts, their subjects, and their opinions and the substance of their facts.
Interrogatory 71 asked plaintiff to “state the alleged negligent acts or omissions committed” by Dr. Spaulding and the specific dates and times as well and how the acts impacted the patient and what the proper treatment would have been, according to the opinion.
In April 2010, defendants filed a motion to compel plaintiff to respond to interrogatories and shortly thereafter plaintiff responded but did not specify an expert or reply to Interrogatory 71. Defendants filed another motion to compel and plaintiff’s responded but not with the degree of specificity the defendants argued was required.
A hearing was held in June and more motions to compel followed with communications from the plaintiff following that the defendants alleged were insufficient.
Finally, the court sanctioned plaintiff for noncompliance by precluding plaintiff from using any evidence at trial that was requested in Interrogatories 64 and 71.
The plaintiff conceded that without an expert or evidence of defendants’ negligence it could not oppose a motion for summary judgment and the court granted judgment in defendants favor. Plaintiff appealed this judgment to the state’s high court.
“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,” the opinion states.
“The record does not support plaintiff’s first argument that defendants’ July motion to compel was precluded by the court’s oral rulings during the June hearing,” Justice Skoglund wrote. “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 plaintiff’s expert disclosure or completeness of plaintiff’s answers to interrogatories.
“The court’s rulings certainly did not bar further consideration of the adequacy of plaintiff’s answers regarding its expert and the substance of the expert’s opinion.
“Next, we turn to plaintiff’s 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 bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.
“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,” wrote Skoglund.
“Given plaintiff’s 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.”
Robinson’s dissent took another view, arguing that the majority had imposed too narrow an interpretation of the rules of discovery.
“The issue in this case is not whether defendants were entitled to the information they sought through the ordinary course of discovery; rather, the question presented is whether they got the information they were entitled to get through the particular tool of expert interrogatories pursuant to Vermont Rule of Civil Procedure 26(b)(4)(A)(i).
“In affirming the trial court, the majority applies a far more exacting standard than the Rule supports. Moreover, the trial court’s sanction for the purported discovery violation, which was tantamount to dismissal of plaintiff’s case on the merits, exceeded the trial court’s broad discretion.
“Responding to the issue as framed by plaintiff, the majority analyzes plaintiff’s response to defendants’ interrogatories concerning Dr. Stickney using Rule 26(b)(4)—the provision governing discovery as to expert witnesses. Dr. Stickney was not merely a disinterested expert in this case; he was the decedent’s primary care provider.
“Plaintiff’s complaint alleges that the decedent’s primary care physician—Dr. Stickney—recommended that decedent start a course of antibiotics to treat her MRSA infection, but after consulting with defendant doctor, he was instructed not to prescribe any antibiotics. That makes Dr. Stickney an “event witness.”
“To the extent that the facts he knows and opinions he holds were not acquired or developed in anticipation of litigation, but, rather, arise from his own participation in the case, plaintiff was not obligated to make expert disclosures for Dr. Stickney pursuant to Rule 26(b)(4).
“Accordingly, I have serious reservations about whether plaintiff was even required to provide Rule 26(b)(4) disclosures with respect to Dr. Stickney, and whether Rule 26(b)(4) is the proper legal framework for analyzing the case,” Robinson wrote.
Skoglund had directly replied to the argument of the dissent on this issue.
“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.
“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 plaintiff’s 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,” Skoglund wrote.
Robinson moved on to the sanctions in the case which she argued were tantamount to dismissal of the case.
“My view that the sanction in this case — effective dismissal of plaintiff’s case — was unduly harsh flows in large part from my belief that the disclosure was not insufficient.
“Although I recognize that the trial court did not directly dismiss plaintiff’s claims or enter a judgment of default, the effect of the court’s broad preclusion of any expert testimony whatsoever was the same.
“In the absence of findings of bad faith, or indication that less drastic options were not appropriate, even if I concluded that the trial court’s determination that plaintiff had not complied was within its discretion, I could not affirm the trial court’s sanction in this case,” concluded Robinson.
Again, Skoglund had directly addressed the dissent’s position in the majority opinion.
“The dissent asserts that the court’s chosen sanction was beyond its discretion because the sanction essentially amounted to dismissal.
“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.”
“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.”
This decision affirmed the decision of the Superior Court, Rutland Unit, Civil Division with Judge Mary Miles Teachout presiding. The opinion, filed Feb 1, is subject to motions for reargument for the time proscribed under Vermont Rules of Appellate Procedure.