2013 VT 8


Stella v. Spaulding and Fletcher
Allen Health Care (2011-327)
 
2013 VT 8
 
[Filed Feb-01-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 8 

 

No. 2011-327

 

Albert Stella, as Next of Kin
  and in His Capacity as Executor of the Estate of Deborah A. Stella


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Civil Division


 


 


Laurie Spaulding, M.D. and
  Fletcher Allen Health 
Care, Inc.


September Term, 2012


 


 


 


 


Mary
  Miles Teachout, J.


 

Matthew G. Hart of Kenlan, Schwiebert, Facey & Goss,
P.C., Rutland, for Plaintiff-Appellant.
 
S. Crocker Bennett, II and David M. Pocius
of Paul Frank + Collins P.C., Burlington, for
  Defendants-Appellees.
 
 
PRESENT:   Dooley, Skoglund,
Burgess and Robinson, JJ., and Bent, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   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. Stickney, 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. Stickney 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 plaintiff’s 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. Stickney 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 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.            
Defendant’s 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 defendant’s 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 Plaintiff’s 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 plaintiff’s 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 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.  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 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 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)(i).  Here, plaintiff challenges both whether the
ordered disclosure was required by Rule 26(b)(4)(A)(i) and whether the court erred in sanctioning plaintiff for
noncompliance.  The trial court has broad discretion in both areas. 
We have frequently recognized that “[d]iscovery
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
plaintiff’s 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)(i), parties will be able to avoid the expense of
unnecessary depositions.”  Thus, the purpose of Rule 26(b)(4)(A)(i) 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
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.” 
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
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.  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 plaintiff’s 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.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 23.         ROBINSON, J., dissenting.  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.
¶ 24.         First, an aside.  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).  The Reporter’s Notes to Rule 26 make this clear: 
Note
that the rule applies only to “facts known and opinions held” that were
“acquired or developed in anticipation of litigation or for trial.”  An
expert whose knowledge or opinions are relevant because of his participation in
the events giving rise to suit should be treated for discovery purposes as an
ordinary witness.  
 
See also Reporter’s Notes—2012
Amendment, V.R.C.P. 26 (“Rule 26(b)(4)(A)(i)
continues to provide that the disclosure requirement of paragraph (4) does not
extend to ‘event witnesses,’ in contrast to the requirement of [the] Federal
Rule.”).  
¶ 25.         In
fact, in the context of a medical malpractice case, this Court has held that
the defendant hospital did not run afoul of Rule 26(b)(4)
when it introduced opinion testimony from treating physicians without having
disclosed them as expert witnesses.  Hutchins v.
Fletcher Allen Health Care, Inc., 172 Vt. 580, 582, 776 A.2d 376, 379
(2001) (mem.).  We explained, “Defendant
did not have the same obligation to disclose the opinions of its doctors
because these opinions were formed as a result of the doctors’ participation in
the events that gave rise to the litigation and not ‘in anticipation of
litigation or for trial.’ ”  Id.
(quoting V.R.C.P. 26(b)(4)).
¶ 26.         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.  Because plaintiff did disclose Dr. Stickney pursuant to Rule
26(b)(4), did not make this argument below, and does
not make this argument on appeal, and because defendants likewise treat this as
a straightforward Rule 26(b)(4) expert disclosure case, for the purposes of
this case only, I, like the majority, am viewing the issue through the lens of
Rule 26(b)(4).  See, e.g., McAdams v. Town of Barnard, 2007 VT 61,
¶ 8, 182 Vt. 259, 936 A.2d 1310 (“Arguments not briefed are waived.”). 
I.
¶ 27.         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.  Because Vermont’s Rule 26 is very similar to the federal
rule in effect from 1970 to 1993, the majority appropriately draws from federal
cases applying that version of Federal Rule of Civil Procedure 26.  Ante, ¶ 18 n.2.  Federal case law from that
period supports two closely related and important principles.  First,
pursuant to Rule 26(b)(4), a party cannot require, by interrogatory,
disclosures that are more extensive than provided for in Rule 26(b)(4). 
As a federal district court in Washington explained:
Pursuant
to Rule 26(b)(4)(A), interrogatories seeking discovery
of expert information must be confined to requests for (1) the identity of each
person whom the other party expects to call as an expert witness at trial, (2)
the subject matter on which the expert is expected to testify, (3) the
substance of the facts and opinions to which the expert is expected to testify,
and (4) a summary of the grounds for each opinion.  If a party fails to
answer the interrogatories or does so incompletely or evasively, the
discovering party may move for an order compelling an answer pursuant to Rule
37(a).  However, if additional information is needed after an answer in
compliance with Rule 26(b)(4) has been provided, the party seeking the
information must move the court for an order permitting discovery by other
means, usually a deposition of the expert. 
 
Workman v. Chinchinian,
807 F. Supp. 634, 645 (E.D. Wash. 1992) (emphasis added) (citation omitted);
see also Hockley v. Zent, Inc., 89 F.R.D. 26,
29 (M.D. Pa. 1980). (“[Rule 26(b)(4)] is generally the
exclusive method for learning such information.”).  Pursuant to the
previous Federal Rule 26, expert interrogatories were but one, limited
component of the overall process for expert discovery.  See Swann v.
City of Goldsboro, 137 F.R.D. 230, 232 (E.D.N.C. 1990) (two-step process
outlined in Rule 26(b)(4) “is generally considered to be the exclusive method
for learning such information”); Shackleford
v. Vermeer Mfg. Co., 93 F.R.D. 512, 513 (W.D. Tex. 1982) (“[U]nder the scheme set forth in Rule 26(b)(4)(A), only a
limited amount of discovery of expert witnesses, by means of interrogatories,
is allowed absent agreement of the parties or leave of court.”); Hockley,
89 F.R.D. at 29 (describing two-step expert discovery process contemplated by
the federal rule: first, written disclosures pursuant to Rule 26(b)(4)(A)(i); then, “[i]f the individual
seeking discovery desires further data,” further discovery of expert by, “e.g.,
deposition”).
¶ 28.         The
structure of Vermont’s rule supports the view that in the context of
interrogatories, Rule 26(b)(4)(A)(i) requires
disclosure of only the specific matters listed therein, and is but one step in
a multi-component discovery process available to litigants.  The nonopen-ended list of permissible requests concerning
expert testimony (identity, subject matter, facts and opinions, and grounds for
opinions) suggests that such disclosures are both necessary, upon request, and
sufficient.  Kapusta v. Dep’t of
Health/Risk Mgmt., 2009 VT 81, ¶ 14, 186 Vt. 276, 980 A.2d 236 (“[T]he
expression of one thing is the exclusion of another.”).  If a
litigant could be required to answer any and every question of an expert by way
of interrogatory, the rule would say so.  Moreover, the Reporter’s Notes
to the Vermont Rules suggest that the two-step process described above has been
long-established in Vermont.  See Reporter’s Notes—1996 Amendment,
V.R.C.P. 26 (“The [elimination of requirement for court approval for expert
depositions] reflects the reality that requesting and taking depositions of
trial experts has become standard practice.”).  
¶ 29.         A
second and related lesson from prior-rule federal case law is that the
disclosure required pursuant to Rule 26(b)(4)(A)(i)
does not encompass all of the details a requesting party might ultimately want
to know, and is not intended as a substitute for further discovery as outlined
above.  Rather, the purpose of the interrogatories authorized by the prior
version of Federal Rule 26(b)(4)(A)(i) was “to afford the questioner notice of the basic
arguments the responding litigant intends to press at trial.”  Workman, 807 F. Supp. at 645.  Accordingly, “a
response is adequate if it provides sufficient notice of the theories under
which the answering party plans to proceed.”  Id.  
¶ 30.         In a
pivotal case on the issue, involving a third-party complaint against the
manufacturer of a truck’s braking system brought by a truck driver, a federal
court considered the sufficiency of the truck driver’s response to an expert
interrogatory pursuant to Federal Rule 26(b)(4).  Hockley, 89 F.R.D. 26.  The response stated, in relevant part,
that the electrical system of the trailer brakes “was equipped with inadequate
fail safe devices, disconnect features, nor (sic) devices to warn of system
failure.”  Id. at 28.  The
manufacturer believed the responses were inadequate because they failed to
state exactly what was wrong with the identified parts.  The manufacturer
sought an order requesting a more detailed response or, in the alternative,
requiring the truck driver to provide his expert witness for deposition at no
expense.
¶ 31.         Focusing
on the requirements of Federal Rule 26(b)(4)(A)(i), the first step of the two-step process, the court
wrote, “Essentially, the inquiries are designed to afford the questioner notice
of the basic arguments the responding litigant intends to press at
trial.”  Id. at 30.  Applying that
standard to the disclosure described above, the court concluded that the truck
driver had clearly indicated the theory that he was asserting against the
manufacturer: the system was defective “because it lacked proper fail safe,
disconnect, or warning features.”  Id. at 31.
 The court acknowledged that the expert’s summary was “skeletal,” but
concluded that it was sufficient to give the movant the notice required by Rule
26(b)(4)(A)(i).  Id. 
The manufacturer was free to pursue additional discovery pursuant to Rule
26(b)(4)(A)(ii), but the truck driver had met its obligations pursuant to
subsection 26(b)(4)(A)(i).  This “notice”
standard was the prevailing application of Federal Rule 26(b)(4)
before the 1993 amendment.  See  D. Day, Discovery Standards for
the Testimonial Expert Under Federal Rule of Civil Procedure 26(b)(4): A
Twentieth Anniversary Assessment, 133 F.R.D 209, 223-24 (1990) (“A decade
after Hockley, the potential for prejudicial surprise at trial remains
as the threshold question in the subdivision (A)(i)
notice standard.”).
¶ 32.         Like
the truck driver in Hockley, plaintiff in this case was not required to
answer by interrogatory the litany of detailed follow-up questions posed by
defendant in its motion to compel.  Ante,
¶ 8.  Plaintiff was not required to facilitate an
expert-deposition-by-interrogatory.  The fact that some questions posed by
defendant—whether in a motion to compel or in Interrogatory 71—remain
unanswered, or unanswered to defendant’s satisfaction, does not mean that
plaintiff has failed to comply with its discovery obligations pursuant to Rule
26(b)(4)(A)(i).  The question presented by this
case is whether plaintiff’s expert disclosures were sufficient to give
defendant “notice of the basic arguments” plaintiff intended to pursue at
trial.  
¶ 33.         In
answering this question, I consider several factors.  First, the record
reflects that, after some delay, plaintiff provided Dr. Stickney’s medical file
to defendants.  Although that file itself is not part of the record on
appeal, I presume it includes, at a minimum, Dr. Stickney’s notes about his own
visits with the decedent following her surgery, as well as of his interactions
with fellow care providers, including defendant doctor.  Second,
plaintiff’s complaint is specific and detailed, including dates of significant
post-surgical events.  Although the complaint is not testimony under oath,
it clearly put defendants on notice of the nature and specifics of plaintiff’s
claims.  
¶ 34.         Third,
and related, plaintiff’s claims are based primarily on allegations that
defendant doctor failed to take action that she should have taken,
rather than allegations that she took affirmative actions that caused
harm.  In particular, plaintiff alleges that defendant doctor performed
the surgery; noted a small wound infection in the course of post-surgical care
but did not culture the infection and instead ordered that decedent get no
antibiotics; and then subsequently instructed decedent’s primary care physician
not to prescribe any antibiotics.  Through the course of this
post-operative period, plaintiff alleges decedent’s infection grew to the point
that it took her life.  Given the nature of these complaints, it is hard
to imagine how plaintiff could be more specific in identifying the date and
particulars of each and every negligent act of defendant doctor; the point of
plaintiff’s allegations is that defendant doctor failed to take appropriate
post-operative action to treat decedent’s infection.  To the extent that
defendant doctor allegedly undertook affirmative acts—opting against
prescribing antibiotics after noting a small wound infection, and instructing
Dr. Stickney not to provide antibiotics—plaintiff identified those instances
from the get-go. 
¶ 35.         Finally,
plaintiff’s disclosure as to the substance of Dr. Stickney’s opinions was more
than sufficiently detailed to put defendant on notice of the arguments
plaintiff intended to press at trial:
The
refusal of [defendants] to treat [decedent’s infection] caused her to develop
sepsis which led to her death.  Specifically, [defendants] knew or should
have known that [decedent] had developed a[n] . . .
infection at the site of her surgical incision and that she should have been
treated with antibiotics.  This failure to aggressively treat [decedent’s
infection] with antibiotics was a breach of the standard of care.  In
addition, [defendants], when contacted by Dr. Stickney, refused to allow Dr.
Stickney to prescribe [decedent] antibiotics for her [infection] claiming that
she was their patient and her post surgical treatment
was their responsibility.  The refusal of [defendants] to allow Dr.
Stickney to treat [decedent] with antibiotics was a breach of the standard of
care.
 
¶ 36.         What
more need plaintiff say to put defendants on notice of its theory of
malpractice?  The majority states that plaintiff failed to identify what
persons at Fletcher Allen Health Care (FAHC), other than the co-defendant, were
alleged to be at fault.  Ante, ¶ 20. 
This assertion presumes that plaintiff will argue that some person other than
defendant doctor was negligent.  I see no basis in the pleadings or record
to support that assumption.  If plaintiff attempted to present at trial
claims based on the alleged negligence of other FAHC agents, on the basis of
this record, the trial court would be well within its discretion to exclude
those new allegations.  That speculative possibility does not render the
existing disclosure inadequate in its entirety.  The majority also states
that “plaintiff did not provide any illumination of the critical question of
why Dr. Spaulding’s approach would be binding on decedent’s treating
physicians.”  Ante, ¶ 20.  In
essence, the majority is requiring plaintiff to include as part of its Rule
26(b)(4)(A) disclosure its response to a logical
defense that defendants might raise in response to plaintiff’s claims: 
Dr. Stickney himself or some other provider subsequent to Dr. Spaulding’s
surgery could have prescribed the appropriate antibiotics.  The majority’s
requirement that plaintiff anticipate and respond to defendants’ potential
counterarguments in their Rule 26(b)(4)(A) expert disclosure is far more
exacting than the Rule’s actual requirement that expert disclosures in response
to interrogatories provide “notice of the basic arguments the responding
litigant intends to press at trial.”  Hockley, 89
F.R.D. at 30.  For the above reasons, I respectfully dissent from
the majority’s opinion that the trial court did not abuse its discretion
in concluding that plaintiff had failed to comply with his obligations in
discovery.  
¶ 37.         I
realize the approach described above is not without peril.  The majority
is right that full and fair disclosure promotes fair and efficient
trials.  The danger of the position set forth above is that litigants will
deliberately disclose as little as they believe they must in expert witness
interrogatory answers, thereby forcing costly depositions where they might not
otherwise be necessary, and disadvantaging litigants who do not have the
resources to play that game.  On the other hand, an approach that sets up
Rule 26(b)(4)(A)(i) as a tool for dismissing cases,
or as a portal for far more extensive discovery than described above, invites
game-playing of its own.  Maybe a rule that allowed litigants to opt out
of costly depositions and to substitute, instead, detailed written expert
interrogatories, would be a better one.  But that is not the rule we have,
and any substantial change should be enacted by rule amendment and not a
decision that changes the intended meaning of the rule.  
II.
¶ 38.         Although
I conclude that any sanction would be inappropriate in light of the above
analysis, the trial court’s response to the perceived shortcomings in plaintiff’s
interrogatory answers was especially draconian.  The trial court could
have advanced the goals of discovery, and of Rule 26(b)(4)(A)(i) in particular, by precluding plaintiff from proceeding
at trial on the basis of theories or medical opinions not disclosed in
discovery.  V.R.C.P. 37(b)(2)(B); see, e.g., Weiss v. Chrysler Motors
Corp., 515 F.2d 449 (2d Cir. 1975) (trial court improperly allowed
defendant car manufacturer to present expert testimony concerning prior
fractures within steering assembly where defendant had failed to disclose this
theory in discovery).  That way, if plaintiff was holding back, he might
be left holding the bag.  
¶ 39.         The
trial court could have stayed further proceedings until plaintiff answered the
interrogatory to the court’s satisfaction, thereby frustrating plaintiff’s
ability to pursue his claim until he complied.  V.R.C.P. 37(b)(2)(C).  The trial court could have made a finding of
contempt.  V.R.C.P. 37(b)(2)(D).  
¶ 40.         Or
the trial court could have responded to plaintiff’s plea to the court,
presented in plaintiff’s Emergency Motion For Clarification of The Court’s
September 9, 2010 Entry Order and Request for Hearing, to clarify what more was
expected from plaintiff by way of expert disclosure.  Instead, the court
simply indicated in its handwritten entry order that defendants’ disclosure was
“not sufficient satisfaction of the [d]efendant[s’]
discovery request for the substance of the witness’ expert opinion.”  In
light of the authority cited above, plaintiff could be forgiven for failing to
discern what the trial court perceived was missing.
¶ 41.         Rather
than pursue one of the above paths, the trial court ruled that plaintiff was
precluded from using any evidence at trial that was requested in
Interrogatories 64 and 71.  In other words, the scope of defendants’
interrogatory inquiries, rather than Rule 26(b)(4)(A)(i), governed the trial court’s analysis of plaintiff’s
disclosure obligation.  Rather than limiting plaintiff to presenting evidence
or theories only as disclosed, the trial court ruled that plaintiff could not
present any expert testimony at all, ensuring that plaintiff could not
survive summary judgment and therefore effectively dismissing plaintiff’s
claims on the merits.  This was the nuclear option.  
¶ 42.         We
have repeatedly required trial courts to explore less drastic sanctions for
discovery violations, and have held that “[w]hen a trial court invokes the
sanction of dismissal under Rule 37, it must ‘indicate by findings of fact that
there has been bad faith or deliberate and willful disregard for the court’s
orders, and further, that the party seeking the sanction has been prejudiced
thereby.’”  In re Houston, 2006 VT 59, ¶ 11,
180 Vt. 535, 904 A.2d 1174 (mem.) (quoting John v. Med. Ctr. Hosp. of Vt., Inc., 136 Vt.
517, 519, 394 A.2d 1134, 1135 (1978)).  In John we considered a
trial court’s dismissal of a malpractice case as a sanction for plaintiff’s
failure to comply with expert disclosure requirements, concluding:
The
imposition of the dismissal sanction cannot be imposed merely as punishment for
failure to comply with the court’s order.  As the Supreme Court noted in Societe Internationale
v. Rogers, 357 U.S. 197
(1958), dismissal of an action because of a genuine inability to
comply with a pretrial production order raises due process issues under the
Fifth (and in this case, the Fourteenth) Amendment to the United States
Constitution.  In the absence of a finding of gross indifference, bad
faith, or willfulness, coupled with substantial prejudice to the adverse party,
a less drastic sanction should be used.
 
136 Vt. at 519-20, 394 A.2d at
1135; see also Manosh v. First
Mountain Vt., L.P., 2004
VT 122, ¶ 10, 177 Vt. 616, 869 A.2d 79 (mem.)
(reversing trial court’s dismissal of case as discovery sanction given absence
of findings that failure to comply was willful, that other party suffered
prejudice, and that trial court had considered less drastic sanction); C.C.
Miller Corp. v. Ag Asset, Inc., 151 Vt. 604, 606, 563 A.2d 626, 627 (1989)
(same).
¶ 43.         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.
¶ 44.         I am
authorized to state that Justice Dooley joins this dissent.
 

 


 


 


 


 


Associate Justice

 







[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 case. 
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.  



