Hutchins v. Fletcher Allen Health Care, Inc.

Hutchins v. Fletcher Allen Health Care, Inc. (98-543); 172 Vt. 580;
776 A.2d 376

[Filed 11-Apr-2001]

[Motoin for Reargument Denied 03-May-2001]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-543

                               MAY TERM, 2000


Roy and Betty J. Hutchins	       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Chittenden Superior Court
                                       }	
                                       }
Fletcher Allen Health Care, Inc.       }	DOCKET NO. S0888-96 CnC

                                                Trial Judges: Linda Levitt
                                                              Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:


       Plaintiffs Roy and Betty Hutchins appeal from a jury verdict in favor
  of defendant Fletcher  Allen Health Care, Inc. in this medical malpractice
  action.  On appeal, plaintiffs claim the trial court  erred in (1)
  excluding their proposed expert witness, (2) admitting undisclosed expert
  opinion  testimony, and (3) failing to instruct the jury regarding
  negligence per se and res ipsa loquitur.  We  affirm.

       Plaintiffs' claim of negligence centers on the fact that doctors
  employed by defendant left a  surgical sponge, a thin rectangle of sterile
  gauze, in Roy Hutchins's body after they had opened his  chest to massage
  his heart.  The facts are unusual because the procedure occurred in the
  surgical  intensive care unit (SICU), where Hutchins was placed after he
  had emergency cardiac bypass  surgery.  He suffered cardiac arrest, and was
  "dead" for an hour before five doctors employed by  defendant restarted the
  heart and surgically closed his chest.  One surgical sponge was left
  between  Hutchins's skin and sternum, and he suffered a sternal bone and
  tissue infection allegedly from the  sponge.  Eventually, doctors had to
  remove Hutchins's sternum and other tissue and rib material.   The pain and
  suffering, and loss of functionality, caused by the infection and resulting
  treatment  serve as the basis for plaintiffs' damage claim.

       Plaintiffs brought suit on June 24, 1996, almost three years after the
  bypass surgery and  cardiac arrest.  They alleged that the failure to
  remove the sponge involved a number of negligent  acts.  Specifically, they
  alleged that defendant was negligent in failing to furnish the SICU with 
  radio-opaque sponges and failing to put such sponges with the equipment
  used to open Hutchins's  chest.  Radio-opaque sponges contain material that
  make them visible on x-rays so they can be found  during and after
  operations.  Plaintiffs also charged that the doctors were negligent in
  failing to use  radio-opaque sponges that were available, failing to keep
  track of the sponges they used, and failing  to find and remove the sponge
  which caused the infection.  

 

       During initial discovery plaintiffs disclosed that they had retained
  two expert witnesses who  would testify consistent with the negligence
  theories above and would also testify that defendant's   negligence was the
  cause of plaintiffs' damages.  In July 1997, plaintiffs disclosed that they
  had  retained a third expert, Dr. John Luber, who would testify that
  defendant's doctors were negligent in  other respects in conducting the
  various procedures they employed.  As a result of a status  conference in
  November 1997, the court ordered that any further expert witnesses for
  plaintiffs be  disclosed by December 1, 1997, so the case could be ready
  for trial on July 1, 1998.  On March 24,  1998, plaintiffs filed a motion
  for a continuance and for leave to employ another expert witness  because
  Dr. Luber had announced that he would not testify.  At the May 27 hearing
  on the motion,  plaintiffs disclosed that they had found the needed expert,
  Dr. Gary Kopf.  Nevertheless, the trial  court denied the motion for a
  continuance and the motion to add a replacement expert witness, and  later
  ruled that Dr. Kopf could not testify in rebuttal.  In a related action,
  the court also denied  plaintiffs' motion to prohibit the five doctors
  employed by defendant and involved in Hutchins's  treatment from giving
  expert testimony with respect to the treatment actions taken by any of the 
  doctors.  These decisions are challenged by plaintiffs in the first two
  issues they raise on appeal.

       During trial, plaintiffs requested that the trial court charge the
  jury that failure to remove the  sponge was negligence per se and that the
  jury could find negligence based on res ipsa loquitur.  The  failure to
  grant those requests is the basis for the third issue on appeal.

       On appeal, plaintiffs first argue that the trial court erred in
  denying their pre-trial motion to  add Dr. Kopf as an expert witness to
  replace Dr. Luber.  Under V.R.C.P. 26(b)(4)(A) an opposing  party has a
  right to discover the identity, and the substance of the testimony, of a
  party's expert  witness and to take the expert's deposition.  The trial
  court may set reasonable deadlines on the  completion of discovery, see
  V.R.C.P. 26(f).  If a party fails to disclose the intent to offer the 
  testimony of an expert witness within a discovery deadline, the trial court
  may prevent the non-disclosing party from offering the expert testimony. 
  See White Current Corp. v. Vermont Elec.  Coop, 158 Vt. 216, 223, 609 A.2d 222, 226 (1992); see also State v. Meyers, 153 Vt. 219, 224, 569 A.2d 1081, 1085 (1989) (decided under similar criminal rule).  On appeal from an
  order excluding an  expert witness from testifying, the appellant must show
  an abuse of discretion.  See White Current  Corp., 158 Vt. at 223, 609 A.2d 
  at 226.  

       The court's decision explained two reasons for disallowing the
  replacement expert witness.   First, the new expert witness was disclosed
  only a month before the jury drawing date, and allowing  defendant adequate
  discovery would delay the trial significantly. (FN1)  Second, Dr. Kopf
  would  testify 

 

  only to the negligence theories involving the failure to remove the sponge,
  and would not support the  broader theories advanced by Dr. Luber.  Thus,
  Dr. Kopf's testimony was cumulative to that of  plaintiffs' other two
  expert witnesses.

       The court had the power to set a trial date and deny pretrial motions
  that would delay its  scheduled trial date.  See V.R.C.P. 16.2.  It could
  prevent the "needless presentation of cumulative  evidence."  V.R.E. 403. 
  In acting for these reasons in denying the motion to add Dr. Kopf as an 
  expert witness, the court did not abuse its discretion.

       The court was similarly within its discretion when it denied pretrial
  the plaintiffs' listing of  Dr. Kopf as a rebuttal witness.  To the extent
  that Dr. Kopf was going to offer the same testimony on  rebuttal as
  plaintiffs had proffered for their case-in-chief, the same reasons
  warranted the exclusion.   In any event, the court has wide discretion over
  whether to allow rebuttal evidence, Nelson v. Percy,  149 Vt. 168, 170, 540 A.2d 1035, 1037 (1987), and plaintiffs could not identify aspects of 
  defendant's evidence that it needed to rebut.  It never raised the issue
  with the trial judge during or  after defendant's evidence.


       Next, plaintiffs argue that defendant's doctors should not have been
  allowed to give expert  opinion testimony because Dr. Kopf was excluded,
  based on the theory that the number of expert  witnesses should be
  approximately even, (FN2)  and because defendant failed to disclose these
  doctors as  expert witnesses in violation of its discovery obligation.  In
  response to both points, we note that the  court excluded Dr. Kopf not
  because it was controlling the number of expert witnesses either party 
  could call, but because plaintiffs did not disclose Dr. Kopf within the
  discovery deadline.  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."  V.R.C.P.
  26(b)(4).  "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."  Reporter's Notes to V.R.C.P.
  26.  Defendant committed  no discovery violation, and there was no reason
  to exclude categorically any of its witnesses.   Assuming the court has the
  power to equalize the number of expert witnesses the parties may call, it 
  did not act to do so here.

       Even if defendant had technically violated a discovery obligation, it
  is difficult to see how

 

  such a violation prejudiced plaintiffs and required the sanction they seek.
  (FN3)  Plaintiffs' filings  showed that they were aware that defendant's
  doctors would state their opinions on their own  conduct, and that of their
  colleagues.  Plaintiffs took the deposition of each of the doctors and were 
  free to explore the opinions of each.  None of the delay concerns raised
  with respect to Dr. Kopf  applied to defendant's doctors.

       Plaintiffs' final arguments relate to the jury instructions. 
  Plaintiffs filed a trial memo in  which they proposed jury instructions
  that would have told the jury that (1) leaving a surgical sponge  inside a
  patient, unless there is a medical reason for doing so, is negligence per
  se; and (2) if  plaintiffs satisfy the four elements of res ipsa loquitur
  as set forth in Cyr v. Green Mountain Power  Corp., 145 Vt. 231, 235-36,
  485 A.2d 1265, 1268 (1984), then the jury could infer negligence from  the
  fact that the sponge was left inside Mr. Hutchins.  The court's charge to
  the jury did not include  these requested instructions, but plaintiffs
  failed to object following the delivery of the charge.  As a  result,
  plaintiffs waived any claim of error with respect to the jury instructions. 
  V.R.C.P. 51;  Trombley v. Southwestern Vt. Med. Ctr., 169 Vt. 386, 395, 738 A.2d 103, 110 (1999); Hartnett v.  Medical Ctr. Hosp. of Vt., 146 Vt. 297,
  302, 304, 503 A.2d 1134, 1137 (1985).


       Affirmed.  


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  The motion to allow Dr. Kopf was argued on May 27, 1998, and
  apparently was orally  denied on that date.  At that time, the trial was
  scheduled to commence right after jury drawing on  July 1, 1998.  The court
  issued a written decision on the motion on July 9 after the jury drawing
  and  also after the court had continued the trial to September 8, in
  response to defendant's motion.  There  is no indication that plaintiffs
  renewed their motion after the continuance was granted, except with 
  respect to rebuttal as discussed in the text, and they did not seek at
  trial to admit testimony from Dr.  Kopf.

FN2.  Plaintiff failed to preserve this issue with respect to three of the
  five witnesses at issue.  On  the morning of the second day of trial,
  during a bench conference, plaintiffs objected to the defendant  being
  allowed to have the doctors involved in the surgery testify as expert
  witnesses.  The court ruled  that these doctors could testify.  All the
  doctors testified and gave opinions, but plaintiffs did not  object to
  opinion testimony given by three of the doctors.  Thus, plaintiffs have
  waived any claimed  error with respect to the testimony of these doctors. 
  See State v. Koveos, 169 Vt. 62, 69, 732 A.2d 722, 727 (1999) (motion in
  limine to admit or exclude evidence preliminary and further objection 
  required to preserve issue).  

FN3.  In addition to the reasons in the text, we question whether the
  opinions of the interested  doctors unfairly outweigh those of plaintiffs'
  disinterested experts.  Moreover, the jury was  instructed by the court
  that it could find the testimony of a smaller number of experts to be more 
  credible than that of a larger number of experts testifying to the
  contrary.