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In Hill v. Lawrence & Memorial Hospital, supra, 45 Conn. L. Rptr. at 790, 792, the court applied the reasoning set forth in Thomaston but reached a different result under the facts of that case.
Summary of this case from Redding Life Care, LLC v. Town of ReddingOpinion
No. HHD X04 CV-4034622 S
June 30, 2008
MEMORANDUM OF DECISION ON MOTIONS FOR PROTECTIVE ORDERS (##147, 148)
After consideration, the court issues this memorandum of decision concerning the motions for protective orders filed by non-parties Dr. Richard M. Hellman and Dr. Jason R. Haldas (movants) concerning notices of depositions. In addition, the court has considered the plaintiffs' objections to the motions (##150, 151). The movants seek protective orders concerning their depositions, asserting that, since they do not consent to rendering opinion testimony, the scope of examination at their depositions should be limited to factual matters. Requests for adjudication were filed on June 18, 2008.
The plaintiffs also cross-moved to compel the depositions to occur before June 30, 2008. Since the time to conduct depositions subsequently was extended, the court considers the cross-motions to be moot.
In this medical malpractice action, the plaintiffs allege that the defendants, Thomas J. Manning, M.D. (Manning), Ocean Radiology Associates, P.C. (Ocean), and Lawrence Memorial Hospital, were negligent in failing to detect a lung mass which appeared on Robin Hill's (decedent) x-rays. The decedent was later diagnosed with lung cancer and subsequently passed away.
In plaintiffs' disclosure of expert witnesses (#135), the plaintiffs list the movants as expert witnesses. Each is described as a treating physician, who treated the decedent for lung cancer. In addition to disclosing that they will testify concerning her treatment, the plaintiffs state that the movants "will further testify that if the defendant radiologist detected the mass on 11/28/01, more likely than not, plaintiff's decedent could have been treated and would have survived."
In their motions, each movant states that he was a treating oncology physician for the decedent. Each asserts that the plaintiffs did not obtain his permission before disclosing him as an expert witness on damage or causation. Defendants Manning and Ocean noticed the movants' depositions. The movants object to the notice to the extent that they will be asked to give expert testimony on these issues and seek protective orders prohibiting counsel for any party from such inquiry. They contend that, under Connecticut law, they cannot be compelled to offer expert opinion testimony against their will. Each states that he recognizes that he may properly be questioned regarding his own conduct and his treatment of the decedent.
In response, the plaintiffs contend that the movants' argument rests on an "expert privilege" which is not recognized in Connecticut. See objections, pp. 4-7. In particular, they rely on Town of Thomaston v. Ives, 156 Conn. 166, 172, 239 A.2d 515 (1968), which is discussed below. Alternatively, they argue that if such a privilege exists in Connecticut, it would be applied on a case by case basis and would not be absolute.
The trial court has the inherent authority to moderate the discovery process by imposing protective orders under appropriate circumstances. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221-22 n. 59, 884 A.2d 981 (2005). The Supreme Court has "long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court . . ." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006). In Lougee v. Grinnell, 216 Conn. 483, 487 n. 3, 582 A.2d 456 (1990), the Supreme Court addressed the merits of a non-party witness' claim even though former Practice Book § 221, now § 13-5, provides that a protective order may be issued only to protect a party.
In relevant part, Practice Book § 13-5 provides, "for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters . . ."
Town of Thomaston v. Ives, supra, 156 Conn. 174, states that, there, the court decided "only the case of the type at hand." In the context of a condemnation matter, the Thomaston court dealt with the "right of a litigant to require, on his own behalf, testimony concerning an opinion by an expert employed by the adverse party." Id., 171. As stated above, the instant matter does not involve a claim by the plaintiffs that they seek opinion testimony from an adversary's expert.
In its discussion in Thomaston, the Supreme Court noted that "[u]ndeniably, there is a distinction between the duty of a witness to testify to factual matter within his knowledge and the imposition of a requirement that he voice his opinion concerning a subject with which he is conversant as an expert. It is the duty of every witness, lay or expert, to respond to a subpoena and, unless privileged, to testify to factual matters relevant to a controversy. If the rule was otherwise, the trial of causes in the courts would be seriously impeded. The same necessity does not exist, however, for requiring a witness who has been employed as an expert by a litigant to testify to his expert opinion as a witness for his employer's adversary. It is because of this factor that the unanimity which exists in the first situation disappears when courts have been confronted with the second." Id., 172.
In Thomaston, the court affirmed that an appraiser, who had been employed by the state to appraise the damages arising from a taking, but who had not been produced as a trial witness by the state, see id., 168, was required to testify concerning his opinion as to the value of the condemned property. See id., 171. Thus, the situation there differs from the one here in two important ways: no condemnation is at issue and it is not claimed that the movants have been employed to render opinions for the plaintiffs' adversaries.
In affirming, the Supreme Court in Thomaston stated, "[t]his is not to be taken to mean that every expert witness is to be held to the same requirement. The wide diversity of subjects on which expert opinion may be required and the varying circumstances under which the opinion may be sought militate against any such sweeping generalization." Id., 174. In explanation, the court stated, "[w]e have, in the present case, an eminent domain proceeding initiated by the state. The property owner is required to yield involuntarily to the sovereign's demand. The only question in issue is the fair value of the property seized. The single objective of the present proceeding is to ensure that the property owner shall receive, and that the state shall only be required to pay, the just compensation which the fundamental law promises the owner for the property which the state has seen fit to take for public use. All material and relevant information which will assist the trier in determining the sum of money which will constitute that just compensation should, in justice to both parties, be made available to him. We apprehend no unfairness to the witness in requiring him to give the trier the benefit of his expert opinion to that end. The expert employed to make an appraisal in such a proceeding would, in the normal course of events, expect to be called upon, as a witness, for his opinion." Id., 174.
Here, where the movants were employed as treating physicians, and not as adversary experts, it does not follow that, they, in the normal course of events, would expect to be called upon as expert witnesses for the plaintiffs on causation and damages. See id.
More recently, the Appellate Court, in Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 68, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005), noted the limitations expressed in Thomaston. "The Thomaston court was careful to limit its holding to the specific context and circumstances of the case. In so doing, the court did not bar, in other contexts and under other circumstances, application of the `position that the admissibility of such [expert] testimony rests in the sound discretion of the trier.' Id., 173." Cavallaro v. Hospital of Saint Raphael, supra, 92 Conn.App. 68.
This court agrees with Izquierdo v. Kia Motors America, Superior Court, Complex Litigation Docket at Tolland, Docket No. X07 CV 00 0075599 (June 16, 2003, Sferrazza, J.), where the court, also citing Thomaston, but not characterizing the issue as one of "expert privilege," stated that "[a]n adversary can subpoena and force an expert witness retained and disclosed by the other side to disgorge an expert opinion at trial . . . Except for that particular scenario, however, one cannot usually require an expert to appear and render an opinion, even if qualified to do so, if the expert refuses to offer the opinion voluntarily. Thomaston v. Ives, 156 Conn. 166, 172-74 (1968)." See also Drown v. Markowitz, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 05 4010740 (August 18, 2006, Rittenband, J.T.R.) (41 Conn.L.Rptr. 855) (in medical malpractice action, defendant treating physician, who did not consent to be an expert for plaintiff as to the conduct of other health care providers, was not required to testify as to standard of care regarding other health care providers).
In support of their alternative argument, that if an expert privilege exists in Connecticut, it would be applied on a case by case basis, the plaintiffs refer the court to a dissenting opinion in Burnett v. Alt (In Re Alt v. Cline), 224 Wis.2d 72, 589 N.W.2d 21 (1999), where the Wisconsin Supreme Court majority concluded that, in the circumstances presented there, a doctor had an implied, qualified legal privilege to refuse to provide his expert opinion, in the absence of a showing of compelling need. See id., 224 Wis.2d 86, 89. The court rejected the argument, which as discussed below, is also made here, that there was a compelling need for the testimony of the physician because he, as a treating physician, was unique. The court found that he was not unique with respect to the question asked at his deposition. See id., 90.
More recently, the Wisconsin Supreme Court revisited this subject and explained several policy reasons underlying the privilege, which it reiterated was applicable in the absence of compelling need. See CT Page 10687 Carney-Hayes v. Northwest Wisconsin Home Care, Inc., 284 Wis.2d 56, 65, 699 N.W.2d 524 (2005). Included among the policy reasons were the heavy strain on relationships in health care facilities when one health care provider is required to make a public assessment under oath about another's professional performance. See id., 284 Wis.2d 80. "In the absence of necessity, there are practical reasons to avoid these familiar human problems by not requiring non-essential opinion testimony from certain witnesses." Id.
In addition, the Wisconsin Supreme Court cited another policy reason: "the relationships among local health care providers may affect the objectivity of their testimony. Some witnesses may have a financial stake in the outcome of malpractice litigation. As a result, they may shade their testimony to advance their own interests, guard their own reputations, or protect their co-workers . . . Hence, unless the circumstances are exceptional, a medical witness who is unwilling to testify as an expert should not be required to give her opinion on the standard of care applicable to another person or be asked to second-guess another person's performance. In most fields, the answers to questions of this nature are not unique or irreplaceable. Another expert in the appropriate field could answer such questions." (Footnote omitted; internal quotation marks omitted.) Id., 284 Wis.2d 80-81. The court also noted that a similar privilege has been recognized in several other jurisdictions, generally based on the common law. See id., 284 Wis.2d 75 n. 4.
The plaintiffs also argue that the movants should be compelled to testify because they possess unique knowledge. They acknowledge that any qualified expert can render opinions based on medical charts and records, and experience, but assert that the movants, as treating oncologists, have unique insight concerning the decedent and would therefore be in the best position to testify as to treatment and survivability. See objections, p. 9.
This part of the plaintiffs' argument, taken to its logical extension, would necessitate that any physician who treats a patient after alleged malpractice has occurred is required to become an expert witness in an ensuing malpractice action. Such a blanket requirement would be contrary to the distinction, cited in Thomaston, "between the duty of a witness to testify to factual matter within his knowledge and the imposition of a requirement that he voice his opinion concerning a subject with which he is conversant as an expert." Town of Thomaston v. Ives, supra, 156 Conn. 172. As noted above, the court there determined that, since the state had engaged the appraiser to render an opinion in that condemnation matter, it was appropriate to order him to testify on rebuttal for the town. That element of being so engaged by an adversary is absent here. As discussed above, the Supreme Court stated that the same necessity which requires testimony about relevant factual matters does not exist for requiring an expert to testify to his expert opinion. See id.
Also, as noted above, the court in Burnett v. Alt (In Re Alt v. Cline), supra, 224 Wis.2d 89-90, rejected a similar uniqueness argument concerning a treating physician. Subsequently, a concurring opinion in Carney-Hayes v. Northwest Wisconsin Home Care, Inc., supra, 284 Wis.2d 95-6, stated, "the fact that a witness has crucial factual testimony regarding his or her own observations is irrelevant for purposes of determining whether there is a compelling need for his or her expert opinion regarding the significance of those facts."
In their disclosure of expert witnesses, the plaintiffs have disclosed several other experts on the subjects at issue. For example, Dr. Halvorsen is expected to testify that "the missed diagnosis was a deviation from the standard of care and such deviation resulted in the decedent's terminal illness and death." Also, he is expected to testify that "the mass had likely not metastasized as of November 28, 2001, and was treatable." See disclosure, p. 2. Dr. Waxman is expected to testify that "[h]ad the mass been treated at that time, the . . . decedent would have likely survived and lived a normal life expectancy." See disclosure, p. 3. Dr. Miller is expected to testify to a similar opinion. See disclosure, p. 4. Other experts may have been available as well. Clearly, in view of the plaintiffs' disclosure, compelling need for the movants to express opinions has not been shown.
Finally, the court is also unpersuaded by the plaintiffs' contention that, having treated the decedent, the movants would have already reviewed those medical records necessary to render the requested opinions, which the plaintiffs assert they are "likely to already have formed given the nature of [their] work." See objections, p. 8. In the absence of compelling necessity, the fact that the movants are likely to have formed opinions is an insufficient basis on which to require them to be expert witnesses.
CONCLUSION
For good cause shown, the motions for protective orders are granted. Counsel are prohibited from questioning the movants on the issues of opinion concerning damages or causation, as to whether, if the mass had been detected in November 2001, the decedent could have been treated and would have survived, as specified in the plaintiffs' disclosure of expert witnesses as pertaining to them. They may be questioned as to factual matters related to their own conduct and treatment of the decedent.
It is so ordered.