Eric Klein et al. v. Norwalk Hospital (2012)

MEMORANDUM OF DECISION RE MOTION TO PRECLUDE # 256 and GLICKEL MOTION, MOTION TO COMPEL # 283

IINTRODUCTION

This action was filed by writ, summons and complaint dated October 16, 2003 by the plaintiffs Eric Klein and Jamie Klein.   The defendant is Norwalk Hospital.   The plaintiffs' original complaint was in four counts with Count One Malpractice against Norwalk Hospital, Count Two Negligence against Norwalk Hospital, Count Three and Count Four alleging loss of consortium.   The plaintiff Eric Klein claimed lost wages and impairment of earning capacity.   On October 12, 2004 the court, Tobin, J., granted a motion to strike the Second and Fourth Counts of the complaint.   On March 7, 2005, the plaintiff's filed an amended Complaint alleging in Count One that the defendant failed to satisfy the standard of care and Count Two alleging a cause of action for loss of consortium.   On September 30, 2005, the court granted a motion to amend the complaint (June 14, 2005 amended complaint) over objection so as to “amplify” the damages to include a recent diagnosis of kidney damage.

In order to fully address and understand the motions which have been argued on June 4, 2012, the court recites the history of this action regarding discovery issues, expert disclosures and trial readiness.

The plaintiff's submitted disclosure of experts on January 13, 2006.   This disclosure included nine separate doctors, Kavookjian, Watson, Wolfe, Glickel, Altman, Cuzzone, Conley, Weiss, and Batter.   Some time after, on October 13, 2006, the defendant also disclosed the plaintiffs' experts, Meinke, Cuzzone, Kavookjian, Wolfe, Glickel and Watson as its' experts.   On January 13, 2006, the plaintiff's disclosed Dr. Gervitz as an expert familiar with the standard of care regarding proper placement of intravenous lines.   The plaintiff's disclosed Dr. Lechtenberg as an expert concerning the standard of care, causation and damages on May 4, 2006.   Thereafter, on May 19, 2006, Audrey Seeley, FNP, Ph.D, was disclosed to testify that there was a departure of the standard of care causing Dr. Klein's injury.   The court denied the prior motions to preclude Lechtenberg and Seeley.

On August 30, 2006, the defendant filed a disclosure of expert, Dr. Robert Strauch who indicated that the injuries were not the result of malpractice and appears based upon a reasonable medical probability to be the result of Parsonage Turner Syndrome.   The defendant also disclosed Jill Tierney as an expert regarding the standard of care for an IV nurse.   The defendant also disclosed Edmond Provder as an expert for rehabilitation and vocational capacity on November 17, 2006.¹

As to the economic damages, on September 22, 2006, the plaintiff's disclosed Conrad Berenson, Ph.D as an expert concerning the economic loss sustained by the plaintiff including his lost earnings and earning capacity as well as the cost of future medical care.²  The plaintiffs then disclosed Dr. Gary Crakes as an economic expert on December 12, 2006 in lieu of Dr. Berenson because of the unavailability of Dr. Berenson.³  Prior to the trial in January 2007 the defendant submitted motions to preclude Dr. Crakes and Dr. Conrad Berenson.   These were denied.

The case was first scheduled for trial for November 21, 2006 but was continued until January 3, 2007.   On January 17, 2007 the jury returned with a verdict for the defendant.   The plaintiffs appealed the verdict contending that there were evidentiary rulings which were improper.   The appeal focused on the court permitting testimony from Dr. Strauch regarding Parsonage Turner Syndrome and the court ruling that Dr. Gevirtz could not testify on rebuttal as to the exclusion of Parsonage Turner Syndrome because his expert disclosure did not include this testimony.   Additionally, the decision of the Supreme Court addressed the testimony of Dr. Strauch that was based solely upon medical records and deposition testimony with no physical examination of the plaintiff.

The Supreme Court decision issued on December 21, 2010 reversed the Appellate Court and remanded the case to the trial court for a new trial.⁴  The issue raised on appeal involved the ruling of the trial court that Dr. Gevirtz could not testify as to the Parsonage Turner Syndrome.   However, the court also addressed issues “that are likely to recur on retrial.”   These issues involved Dr. Strauch's opinion.   The court stated:  “Although the trial court in this case conducted a Porter hearing to consider the admissibility of Strauch's testimony, the defendant did not demonstrate at the hearing the reliability of the methodology upon which Strauch relied.   Notably, the defendant made no showing that Strauch's methodology had been subjected to peer review, nor was Strauch able to identify a likely rate of error for his chosen methodology.   While neither of these determinations is a talismanic requirement for satisfaction of the Porter requirements, their absence is, in this case, determinative of the inadequacy or the defendant's proof of the methodology's reliability.”  Klein v. Norwalk Hospital, 299 Conn. 241 (2010).

The case was returned to this court and scheduled for trial to begin August 23, 2011.   In preparation for the trial, the parties engaged in some continuing discovery efforts including a deposition of Dr. Gevirtz regarding the Parsonage Turner Syndrome and another deposition of the plaintiff concerning updated damages.   The trial was continued to February 1, 2012 and then again continued until May 1, 2012.⁵  On the eve of trial, counsel for the plaintiff indicated that he had a family emergency that prevented him from beginning trial on May 1, 2012 as well as relating discovery difficulties that had not been addressed.   The court ordered that there was to be no new discovery after April 30, 2012 and the case was to be tried on June 5, 2012.   On this date, the plaintiff filed with the court four expert disclosures, three of which were supplemental and the fourth a disclosure of Dr. Filler.   The case was referred to Judge Robert Genuario for trial.   After discussion with the court, counsel filed a motion to recuse Judge Genuario dated May 18, 2012.   This motion was granted and the case assigned to this court for the June 5, 2012 trial.   On June 4, 2012 this court heard argument on outstanding motions in preparation for the selection of jury and the trial of the matter.   Each of the parties have filed a number of motions addressing the purported failure to complete discovery and the disclosure of experts outside of the time established by the court as well as a motion to preclude the MR Neurography Study of the Left Elbow at the time of trial.   The jury selection was continued to June 7, 2012 to allow an opportunity to argue these motions and provide decisions to guide the parties for purposes of jury selection.   On June 6, 2012 this court continued jury selection until June 19, 2012 to provide counsel with an opportunity to complete the production of documents and disclosure of all experts after the orders of the court.

DISCUSSION OF PRE–TRIAL MOTIONS PRECLUDING EXPERT DISCLOSURE

In Randolph v. Norwalk Hospital Association, 2006 WL 2949108 (Adams, J.), the court stated:  “This Court is mindful of the goal of the judiciary to obtain adjudication of those cases, which cannot be resolved by agreement, on the merits of the parties' positions;  It is important, however, to the Court's function in expediting and controlling the flow and progress of civil litigation that rules and orders designed to accomplish that end be adhered to, and if necessary enforced.   A scheduling order ․ should not be flaunted, nor should Practice Book provisions be ignored ․ both parties are entitled to rely on compliance on the other with orders and Court rules ․”

The defendant submitted a motion to preclude expert witnesses, Drs. Filler, Crakes, Gevirtz and Lechtenberg because the expert disclosure were untimely and in violation of Court Orders (See docket entry # 256).   The defendant refers to the court orders for disclosure of experts by January 5, 2012, March 2, 2012 and April 30, 2012.   The plaintiffs contend that the disclosures are not new experts and that the disclosures were timely in that they were submitted on April 30, 2012 as supplemental disclosure for experts already disclosed.   In particular, Dr. Gevirtz, Dr. Crakes and Dr. Lechtenberg are not new experts but the disclosures are supplemental disclosure in accordance with the continuing duty to disclose.   Dr. Filler is the only new expert and he has been disclosed in conjunction with the MR Neurography test that is the subject of yet another motion to preclude by the defendant.

The court has reviewed each of the supplemental disclosures and determined that each prior disclosure was amended to provide one paragraph entitled “supplemental disclosure” and contains notice of the addition of information, some of which is simply bringing the opinion up to date after the 2007 verdict.

Dr. Crakes' expert disclosure does no more than supplement the testimony concerning the Plaintiffs' ongoing economic loss from 2007 to the present.   Dr. Lechtenberg's disclosure contains supplemental information concerning his opinion about the MR Neurography and the Parsonage Turner Syndrome.   He was disclosed as an expert for the first trial.   However, his supplemental disclosure includes the opinion that the plaintiff does not have Parsonage Turner Syndrome.   This testimony is not simply additional damages because of the passage of time but goes to the very heart of the issues to be presented to the jury.   The disclosure also indicates that he may address the MR Neurography which is the subject of another motion to preclude.   The extension of this testimony is beyond the original disclosure but it addresses the very issue which was considered by the Supreme Court.   Therefore, the court will not preclude Dr. Lechtenberg at this time but will allow his testimony contingent upon the inclusion of the MR Neurography testing after a review of the motion to preclude.   However, the plaintiffs are to make Dr. Lechtenberg available for a deposition by the defendant if they should determine this is necessary and it will be limited to the supplemental disclosure and the expertise and experience of Dr. Lechtenberg in relation to the opinions concerning the testing by MR Neurography and the opinion as to whether his condition is Parsonage Turner Syndrome.⁶

The defendant included within the same motion a request to preclude the supplemental testimony of Dr. Gevirtz.   Dr. Gevirtz testified at the previous trial.   However, the plaintiff has supplemented his report to include testimony about the claim of Parsonage Turner Syndrome.   This supplement in regards to Dr. Gevirtz is no surprise.   At the trial in January 2007 the court would not permit Dr. Gevirtz to testify about Parsonage Turner Syndrome and this became an issue in the appeal.   The defendant is well aware that Dr. Gevirtz conducted a physical exam of the plaintiff and in fact filed motions to obtain his reports before deposition.   The motion to preclude his additional testimony is denied.⁷

The defendant has included in the motion to preclude, the expert testimony of Dr. Gary Crakes, Ph.D regarding the claim of lost earnings.   The defendant contends that the reports are untimely.   Dr. Crakes is not new to this action.   He was disclosed and testified as an expert in the previous trial which resulted in a defendant's verdict.   He submitted a report and expert disclosure dated December 12, 2006.   On April 30, 2012 the plaintiffs provided a “Supplemental Disclosure of Expert Witness” regarding Dr. Crakes.   This Supplemental Disclosure is exactly the same as the December 2006 disclosure except that it contains a Paragraph 5 that states:  “In addition to the foregoing opinions Dr. Crakes will testify concerning the plaintiff's ongoing economic loss from 2007 to the present.   His opinions will be based upon his review of tax returns, legal documents, biographical information produced by the plaintiff, and upon his knowledge, experience and expertise.   Unlike the December 2006 disclosure the plaintiffs did not provide any supporting documentation of the economic loss.   This supplement was made after the court had entered the order in January 2012 that plaintiffs were to disclose experts and again after the court ordered no new disclosures at the management conference on April 30, 2012.   From the time of the first re-scheduling of the trial until April 30, 2012, the plaintiffs made no efforts to supplement the Crakes' disclosure although there was more than sufficient time to do so.   Additionally, upon the supplemental disclosure the plaintiffs did not provide any supporting information that would demonstrate the basis of the supplement but instead left the defendant to guess as to what figures, documents or analysis he utilized in support of this “ongoing economic loss from 2007.”   Without an appropriate disclosure, the court continues the motion to preclude supplemental testimony of Dr. Crakes until the receipt of memorandum or argument of document production.

The motion to preclude states that Dr. Filler who has not been disclosed as an expert prior to the April 30, 2012 and therefore he should be precluded as untimely.   The plaintiff contends that the disclosure was made in an abundance of caution because he conducted the MR Neurography.   The defendant has received the MR Neurography and has had the opportunity to address the findings.   The issue of the admissibility of the Neurography has not been decided by the court and will be the subject of the Porter hearing.   Therefore, the court will not preclude the testimony of Dr. Filler at this time but will consider the motion in conjuction with the Porter hearing.

The defendant has filed a separate motion to preclude Dr. Glickel's May 16, 2012 report contending the report was not timely filed.   The report at issue is a two-page report, progress note, of a physical examination of Mr. Klein.   The defendant relies upon the case of Strom v. Curtiss, 2002 Conn.Super Lexis 3607 (Conn.Super.Ct. Nov. 8, 2002), in support of the motion to preclude this report.   The Strom case offers a different factual scenario than the instant action.   In Strom, the parties were “in the midst of the presentation of the case.”   The plaintiff submitted a clarification of the doctor's report of the future medical treatment and medication which the court determined had a prejudicial impact upon the defendant's reliance upon the reports.   In the instance case, report of Dr. Glickel is consistent with the information available to the defendant and the physical examinations of the plaintiff.   The court denies the motion to preclude the report.

MR NEUROGRAPHY SUBMISSION

The defendant has requested that the court preclude the admission of the MR Neurography for three separate reasons.   First, the defendant contends that the report was not timely made and thus they are prejudiced by permitting the test to be admitted.   The court notes that one of the motions for sanctions against the plaintiffs is the contention by the defendant that this report was sent directly to the expert retained by the defendant, Dr. Beldner.   Additionally, the parties during argument indicated that Dr. Beldner has conducted a physical examination of Mr. Klein in reference to the claims of injury and the cause of the injury which would incorporate the disc of the MR Neurography.   Therefore, the first argument of counsel is not supported by this background to preclude the admission of the test.   The second argument of counsel is that the preparer of the test, Dr. Filler, was not disclosed as an expert.   This has been addressed and Dr. Filler has been disclosed to the defendant with his report.   The third objection addresses the reliability and the acceptance of the method of testing for the MR Neurography.   This objection would require a Porter hearing by this court.   The court is in agreement that a Porter hearing should be conducted to consider the admissibility of this report and as such a hearing for testimony and evidence on this issue will be conducted on June 25, 2012 at 10 a.m.

DR. BELDNER

Although the defendant has retained Dr. Beldner to provide some services in this action, they have not disclosed his report, disclosed him as an expert or made him available for a deposition contending that they have 15 days after the deposition of the plaintiffs' experts to disclose him or provide his reports.   The court, Judge Jennings, in ruling on the objection to a medical examination of Mr. Klein, recognized that the defendant retained the services of Dr. Beldner to examine the plaintiff and to provide a report.   The defendant contends that it is not obligated to provide the report now because the deposition of the plaintiffs' expert Nurse Foley has not been completed.   The court understands the reluctance of the defendant, but Judge Jennings recognized in his decision dated March 30, 2012 that:  “Practice Book § 13–11(d) requires the party causing the examination to be made to deliver to the examined party a written report of the examining physician setting out findings, test results, diagnoses and conclusions.   If Dr. Beldner's report turns out to be favorable to the plaintiff, plaintiff could use that report as the basis for disclosing Dr. Beldner as his own expert, and if necessary, take his deposition for use at trial in Connecticut.”   With this in mind the plaintiffs and the defendant scheduled a physical examination of Dr. Klein as reflected in plaintiffs' April 19, 2012 motion to withdraw the objection to the physical examination.

On May 24, 2012, the plaintiff's submitted a motion to compel the production of the report of Dr. Beldner.   The plaintiff submitted to a physical examination on April 25, 2012.   To date, the defendant has not provided the written report or notes that would include the observations or results of the examination.   The defendant argues that the report is not due until fifteen days after the completion of the depositions of plaintiffs' experts, in particular, Nurse Foley.   The defendant also provides in its' objection to the disclosure of the report, the efforts which were made to obtain the examination and the information that Dr. Gevirtz, the plaintiffs' expert, conducted a physical examination of the plaintiff followed by a report.   The exam was ordered after argument before Judge Jennings on the plaintiffs' motion to compel the exam.   The defendant contends that it has not refused to provide the report but that it is not required to do so until the completion of the expert depositions.   There is no practice book section that controls such a deadline date and the scheduling order that was entered by the agreement of the parties on March 14, 2012 provided fifteen days after plaintiff's experts were deposed.   The defendant also argues that this procedure should be followed because the plaintiffs did not provided the report of Dr. Gevirtz in what they contend was a timely manner.   The defendant states in its objection that the appropriate phrase is “what's good for the goose is good for the gander” applies.   This court disagrees and uses the saying if they jumped off the Brooklyn bridge would you follow.   Such a method of preparing for jury selection and trial does not serve anyone's best interest.   While this schedule may have been appropriate when the depositions were scheduled to be completed well before the trial of this matter, the continuation of this argument is no longer acceptable because such a schedule will delay and possibly prejudice the parties in being fully prepared for jury selection.⁸  The defendant argues that it needs the completion of the deposition of Nurse Foley before the report or expert report can be provided.   The court disagrees and has read the deposition transcripts provided by counsel of Nurse Foley.   Based upon the court's review of the deposition transcripts, the court finds that the defendant has had ample time to understand Foley's theories and/or opinions that are disclosed and inquired about in this action.   Additionally, the report of the exam findings is not affected one way or the other by her deposition.   Recognizing the time restraints, the court modifies the scheduling order and orders that the report of the physical exam of the plaintiff should be provided to the plaintiffs no later than June 15, 2012 which will provide information prior to the jury selection.   The defendant is further ordered to provide any expert report or disclosure of Dr. Beldner by June 28, 2012 which date is not contingent upon completion of other plaintiffs' expert depositions.⁹

CONCLUSION AND ORDERS

In accordance with the above memorandum of decision, the following decisions and orders are entered:

1) The Motion to preclude the testimony of Dr. Lechtenberg is Denied.

2) The Motion to preclude the testimony of Dr. Gevirtz is Denied.

3) The Motion to submit the supplemental testimony of Dr. Crakes is continued for decision until after the parties provide further argument as to whether the defendant received supporting documentation for the years January 1, 2007 to the present.

4) The Motion to preclude testimony of Dr. Filler is continued until the June 25, 2012 hearing regarding the admissibility of the MR Neurography report.

5) The Motion to preclude the Glickel report is Denied.

6) The court will conduct a Porter hearing on June 25, 2012 at 10 a.m. regarding the motion to preclude the MR Neurography Study of the Left Elbow.   Any objection must be filed by June 21, 2012.

7) The motion to Compel production of Dr. Beldner's records is Granted as follows:  Dr. Beldner's records and notes from the examination of Dr. Klein shall be produced by June 15, 2012.   His expert report shall be produced by June 28, 2012.   Any deposition of Dr. Beldner must be scheduled as noted above.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. The plaintiff objected to this disclosure as untimely because trial was to begin on January 3, 2007..  FN1. The plaintiff objected to this disclosure as untimely because trial was to begin on January 3, 2007.

FN2. As part of the disclosure the plaintiff stated that he “will testify that as a result of the plaintiff's injuries he has sustained a gross wage loss of approximately $1,355,072 from the period of March to July 2005.”   In addition the expert is to testify that “the plaintiff has sustained a loss of earning capacity in that this economic loss will continue in the future.”.  FN2. As part of the disclosure the plaintiff stated that he “will testify that as a result of the plaintiff's injuries he has sustained a gross wage loss of approximately $1,355,072 from the period of March to July 2005.”   In addition the expert is to testify that “the plaintiff has sustained a loss of earning capacity in that this economic loss will continue in the future.”

FN3. The plaintiffs' disclosure of Dr. Crakes indicates that he will testify “concerning the plaintiff's economic loss should he work to the age of 55 and alternatively, assuming he works to the age of 60.   His opinion will be based on two methodologies:  using the plaintiff's average earnings from 2000 to 2002 as a starting point, and alternatively, using the plaintiff's earnings from 2002 as a starting point.   The opinion states that:  “Based on the plaintiff's highest pre-injury earning in 2002, it is Dr. Crakes opinion that the plaintiff has sustained an economic loss of $4,559,000 assuming he works to the age of 55 ․ to the age ․ economic loss of $3,800,881..  FN3. The plaintiffs' disclosure of Dr. Crakes indicates that he will testify “concerning the plaintiff's economic loss should he work to the age of 55 and alternatively, assuming he works to the age of 60.   His opinion will be based on two methodologies:  using the plaintiff's average earnings from 2000 to 2002 as a starting point, and alternatively, using the plaintiff's earnings from 2002 as a starting point.   The opinion states that:  “Based on the plaintiff's highest pre-injury earning in 2002, it is Dr. Crakes opinion that the plaintiff has sustained an economic loss of $4,559,000 assuming he works to the age of 55 ․ to the age ․ economic loss of $3,800,881.

FN4. The Supreme Court cite is Klein v. Norwalk Hospital, 299 Conn. 265 (2010)..  FN4. The Supreme Court cite is Klein v. Norwalk Hospital, 299 Conn. 265 (2010).

FN5. These continuances were granted because the parties had not completed new discovery including depositions and expert disclosures..  FN5. These continuances were granted because the parties had not completed new discovery including depositions and expert disclosures.

FN6. Dr. Lechtenberg's deposition can be scheduled during the week of June 9, 2012 or the Mondays following beginning on June 18, 2012 up until Monday July 3, 2012 or any other date prior to July 3, 2012 acceptable to all parties and counsel..  FN6. Dr. Lechtenberg's deposition can be scheduled during the week of June 9, 2012 or the Mondays following beginning on June 18, 2012 up until Monday July 3, 2012 or any other date prior to July 3, 2012 acceptable to all parties and counsel.

FN7. This denial is subject to the decision of the court after a Porter hearing as to the admissibility of the MR Neurography which if precluded would limit the supplemental testimony..  FN7. This denial is subject to the decision of the court after a Porter hearing as to the admissibility of the MR Neurography which if precluded would limit the supplemental testimony.

FN8. On June 6, 2012 the court continued the jury selection in this action because among other matters, any jurors selected on June 7 and 8 may not be apprised of all expert disclosures because of the defendant's position that it has 15 days after completing the deposition of Nurse Foley scheduled for June 14, 2012..  FN8. On June 6, 2012 the court continued the jury selection in this action because among other matters, any jurors selected on June 7 and 8 may not be apprised of all expert disclosures because of the defendant's position that it has 15 days after completing the deposition of Nurse Foley scheduled for June 14, 2012.

FN9. If a deposition of Dr. Beldner is to be conducted the court will not continue the trial date and advises counsel to consult by June 15, 2012 to select available dates including Mondays or the week of July 2, 2012 when the court will not be conducting jury selection..  FN9. If a deposition of Dr. Beldner is to be conducted the court will not continue the trial date and advises counsel to consult by June 15, 2012 to select available dates including Mondays or the week of July 2, 2012 when the court will not be conducting jury selection.

Brazzel–Massaro, Barbara, J.