SOLIMENO v. Yonan

WINTHROP, Judge,

Concurring.

¶ 44 For reasons briefly outlined below, I concur in the ultimate result reached by my colleagues, but write separately to comment on some of the issues raised by this appeal.

¶ 45 The adoption of formal disclosure rules was predicated on the notion that voluntary, detailed disclosure about one’s ease was not only the “right” thing to do, but would also lead to more efficient, cost-effective litigation, reducing discovery abuses and cost, and promoting early and better informed settlement efforts. In reality, however, the nature, extent and sufficiency of disclosure has become a “game” for those inclined to engage in sharp practices, a “trap” to the unwary who in good faith attempt to comply, and an absolute nightmare for the trial bench in attempting to fairly administer and enforce the disclosure requirements.

¶ 46 Rule 26.1 was altruistically designed to move civil litigation one step further away from the concept of “litigation by ambush,” to allow a litigant to efficiently understand the facts and legal theories of an opponent’s case, to discover the nature and identity of any documents or other exhibits which were relevant to the claim or defense, and to understand and fairly meet the anticipated testimony of the opponent’s fact and expert witnesses. It was presumed that, if the disclosure rules were followed in good faith, much of the mind-numbing effort and cost associated with creating and answering nonuniform interrogatories would be eliminated, *84 and that the utilization of specific discovery-devices such as requests for production, requests for admission and depositions could be narrowly tailored to “flesh out” the bones of the voluntary disclosures under Rule 26.1.

¶ 47 To a large extent, Rule 26.1 seems to work reasonably well in the pre-trial setting. Parties generally cooperate in terms of the nature and extent of disclosure, even in asking for or providing supplementation of disclosure, particularly in anticipation of and following depositions. Although there are always anecdotal exceptions, we sense that the “system” during the pre-trial phase is generally achieving its stated goals. Although not expressly stated in the Rule, it is generally understood that facts and opinions timely revealed in formal disclosure statements, interrogatory responses, document production and pre-trial depositions conducted before any discovery cut-off date are considered adequately disclosed for purposes of trial. See generally Committee note to 1996 and 1997 Amendments to Rule 37(c) (“[t]he committee wishes to reemphasize that the disclosure of the information need not be in a formal disclosure statement but can be in response to an interrogatory, request for production, request for admission, deposition, or an informal process so long as all parties are reasonably apprised of the identity of the witness, the information possessed by the witness, or other information sought to be admitted.”). There may be the potential for controversy concerning the timeliness of supplementation, but the trial courts seem to be able to equitably manage those disputes.

¶48 Problems can occur, however, when the case proceeds to trial. Some counsel who generally have been quite cooperative during litigation and discovery now insist upon rigid enfoi’cement of disclosure obligations. The trial bench has not been entirely uniform in its interpretation and enforcement of these obligations; however, this is not to lay any blame on the trial court. Instead, the problem created for the trial judges can be laid directly at the feet of overly-zealous counsel seeking what is, in large part, an artificial and sometimes inappropriate advantage over the opponent.

¶49 Defense counsel’s argument that the complained-of opinions were generically disclosed and that the medical facts supporting the opinions were contained in the hospital chart is not entirely accurate and, to a large extent, misses the point. Here, in volunteering the information at issue, Dr. Yonan was not testifying strictly as a factual witness, but rather was testifying as an expert, offering retrospective opinions concerning his compliance with the standard of care. 7

¶ 50 I do agree with my colleagues that, on this record, Dr. Yonan was in fact presenting himself as an expert on the standard of care, was offering standard of care opinions, and as such, was required by Rule 26.1(a)(6) to formally disclose not only “the substance of the facts and opinions to which the expert is expected to testily” but also a “summary of the grounds for each opinion.” The essence of most of those opinions — including the central opinion that the patient was not in shock until just before her collapse — was in fact revealed both before and during the deposition, and I do not believe that further, formal supplemental disclosure concerning such opinion was required. Additionally, the facts and minutia of the patient’s care — including her vital signs, clinical presentation and labo *85 ratory and diagnostic test results — were not only well known to both sides but detailed at length in the “factual” portion of their respective disclosure statements. How those facts either support or contradict a standard of care or causation opinion is appropriately the subject of pre-trial consultation with experts and deposition examination and, absent the filing of a partially or completely disposi-tive Rule 56 motion, need not be exhaustively reiterated or summarized in affidavits or competing supplemental disclosure statements. Here, each side’s counsel consulted with and retained expert witnesses who were intimately familiar with the patient’s medical data and how it related to the standard of care and causation issues. Accordingly, there was no surprise to either side concerning the medical data available on this patient, nor how it related to the standard of care or causation issues in the case. With one notable exception, the parties’ expert witness disclosures were more than adequate under the rules of procedure.

¶ 51 I do however concur that, as to Dr. Yonan’s reliance on his specific personal treatment experiences with thrombolytics in supporting his position that the applicable standard of care under these circumstances was one of caution, counseling the use of other treatment options, a disclosure violation did in fact occur. This specific basis for his opinion on compliance with the standard of care should have been affirmatively disclosed as required by the rale. It was not, and I believe on this point the trial court’s conclusion was correct.

¶ 52 I also believe, however, that some responsibility rests with plaintiffs’ counsel in deciding as an apparent tactical matter to not question Dr. Yonan in his deposition about any personal experiences with administering thrombolytics in similar clinical settings. This seems a predictable area of inquiry, relevant to both standard of care and causation, and important to explore, if only to compare those personal experiences with the statistical outcomes reported in the literature Dr. Yonan did reference and rely upon during his deposition. Instead, counsel — -a highly skilled and experienced specialist in medical negligence litigation — chose to aggressively and repetitively cross-examine the doctor on other points, seeking in part to extract certain concessions that might ultimately benefit his clients in subsequent settlement negotiations or at trial. This is, of course, a time-honored approach, and counsel cannot be entirely criticized for adopting such approach. And, without question, both a literal reading and common sense application of Rule 26.1(a)(6) should have led defense counsel to be more explicit and detailed in a timely supplemental expert witness disclosure concerning Dr. Yonan’s personal experience as a basis for his opinion.

¶ 53 Therefore, under the facts presented by this case, I agree, at least in part, with the conclusion of the trial court and my colleagues that a disclosure violation occurred. I disagree, however, with the harsh sanction of a mistrial, although that issue was not directly appealed. Accordingly, because that ruling was not appealed, and even though the more appropriate sanction here would have been to sustain the objection, strike that portion of Dr. Yonan’s testimony and consider a limiting instruction, 8 I must also concur in affirming the sanction imposed.

. Although perhaps an artificial distinction, an argument could be made that if Dr. Yonan had been asked, as a factual matter, whether at any particular time while under his care he believed the patient's clinical condition (or vital signs or lab values) was such that he reasonably believed the patient was hemodynamically unstable or in physiologic shock, he could have responded, ''No," and in response to an appropriate follow up question could have explained why he did not conclude the patient was in shock at the time. In that regard, he would be testifying as a percipient witness involved in the events, rather than clearly offering a retrospective opinion as to why his judgment at the time was in compliance with the applicable standard of care. Instead, Dr. Yonan apparently volunteered these opinions and the factual bases and experience-based rationale for same in response to a routine preliminary question on direct examination that did not, on its face, seek to elicit such comments. As with most "volunteered” statements, the trial court on objection would have been well within its discretion in striking the volunteered information and directing the witness to listen more closely to the question asked. Here, however, a motion for mistrial was made, and ultimately granted. The defendant did not directly appeal the granting of the mistrial, but rather argues that there was no disclosure violation.

. Although plaintiffs' counsel suggested at one point proposing a limiting instruction, he never did so, and instead re-urged the mistrial motion. The trial court did not give defense counsel any time to propose such an instruction; however, it must be noted that defense counsel did not ask for that opportunity. Instead, they asked for time to review prior disclosures and deposition testimony to rebut the presumptive finding of a disclosure violation. *91 that the doctrine of laches precludes Johnson from objecting to the settlement.