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Barnes v. Connecticut Podiatry Group, P.C.
Citation: Not availableDocket: AC39564
Court: Connecticut Appellate Court; January 13, 2020; Connecticut; State Appellate Court
Original Court Document: View Document
The “officially released” date indicated in each opinion marks either its publication date in the Connecticut Law Journal or its release as a slip opinion. This date initiates all time periods for filing post-opinion motions and certification petitions. Opinions may be modified and corrected before their official publication in the Connecticut Reports and Connecticut Appellate Reports. In cases of discrepancies between advance and official versions, the latest version is authoritative. The accompanying syllabus and procedural history are copyrighted and cannot be reproduced without permission from the Commission on Official Legal Publications. In the case of KENNETH BARNES v. CONNECTICUT PODIATRY GROUP, P.C. ET AL. (AC 39564), the plaintiff K alleged medical malpractice against the defendant podiatrist D for failing to assess K’s blood flow issues, resulting in partial foot amputations. K initially disclosed expert G regarding standard of care but later amended this disclosure. The defendants moved to preclude the amended disclosure, which the court denied without prejudice but also barred K from disclosing additional experts. Following the denial of K’s motion for reargument, K attempted to introduce expert R, which the court also precluded, reaffirming its prior order. The court additionally barred G from testifying and granted summary judgment for the defendants, prompting K’s appeal. Afterward, S, representing K’s estate, substituted as the plaintiff. The appellate court upheld the trial court's decision to restrict K from disclosing new experts, clarifying that the January 13, 2016 order was a case management decision rather than a sanction. The court acted within its authority to manage the case, especially with the trial imminent and the deadline for expert disclosures having passed, despite S's claims of good cause. The trial court's adherence to the January 13, 2016 order was upheld, as it concluded that a different judge's denial of K's motion for reargument and reconsideration was sufficient grounds for not revisiting the order. S's argument regarding the law of the case doctrine was found to lack merit, as no alternative arguments were presented to challenge the court's decision. Additionally, the court did not err in excluding G's expert testimony on the standard of care and causation because G lacked adequate knowledge of the relevant professional standards in Connecticut at the time of the alleged malpractice in 2011. G's limited experience in Pennsylvania and his uncertainty regarding causation further supported the court's ruling. Consequently, S could not successfully contest the summary judgment favoring the defendants, as the preclusion of additional expert testimony hindered K's ability to establish a prima facie case for medical malpractice. The procedural history indicates that the case was initiated by Barnes in 2012, alleging deviations from the standard of care that led to partial amputations. The trial court's summary judgment was affirmed on appeal, with the administratrix of Barnes' estate substituting as the plaintiff. On April 26, 2012, the defendants denied the allegations in the revised complaint. On May 3, 2012, Barnes disclosed Dr. Jack B. Gorman, a Pennsylvania podiatrist, as an expert witness, asserting that the defendants failed to recognize a potential vascular issue, leading to partial amputations of Barnes' feet. A scheduling order from June 25, 2013, set September 1, 2013, as the deadline for all expert disclosures, which Barnes did not meet. The defendants sought to exclude Dr. Gorman's testimony on March 12, 2014, citing his refusal to be deposed without fee prepayment. Judge Robinson ordered Dr. Gorman's deposition to occur without prepayment by May 14, 2014, but this did not happen. On September 12, 2014, Barnes’ former counsel requested a trial continuance, which was granted due to an emergency procedure. After further requests for continuances related to counsel changes, Judge Robinson mandated an appearance on Barnes' behalf by November 21, 2014. Attorney Joseph R. Mirrione subsequently appeared. A trial management conference was scheduled for December 22, 2015, with the trial set for January 19, 2016. On September 25, 2015, Barnes sought a continuance due to Mirrione being new to the case; this was denied but could be renewed at the management conference. An amended expert witness disclosure filed on November 13, 2015, outlined Dr. Gorman's expected testimony regarding inadequate medical history and treatment, failure to refer Barnes timely to a vascular surgeon, and the resultant deterioration of his condition leading to multiple surgeries and amputations. On November 24, 2015, defendants filed a motion to preclude amendments to Dr. Gorman’s expert witness disclosure, opposed by Barnes. On January 13, 2016, Judge Robinson denied the motion without prejudice, allowing Barnes to supplement Dr. Gorman’s testimony, contingent upon a deposition within fourteen days. However, Barnes was prohibited from disclosing additional experts. The case was reassigned to Judge Lager for managing pretrial motions and scheduling trial. On January 19, 2016, following a scheduling conference, Judge Lager set the trial for August 15, 2016, without permitting further expert disclosures. Barnes then moved for reargument regarding the prohibition on additional experts and the deposition timeline. Defendants objected to this motion. Dr. Gorman was subsequently deposed on January 29, 2016. On February 18, 2016, Barnes’ amended complaint was filed without objection, alleging that defendants failed to meet podiatric care standards, leading to partial amputations due to issues such as inadequate history and failure to consult specialists. On February 29, 2016, Barnes sought to modify the scheduling order to disclose an additional expert, which defendants opposed. On March 4, 2016, Judge Lager modified the scheduling order but did not allow additional expert disclosures. Despite this, on March 9, 2016, Barnes disclosed a new expert, Dr. Rakesh Shah, which prompted defendants to object and seek to preclude his testimony, citing the earlier order. Following further motions and requests for argument, Judge Robinson denied Barnes’ request for reconsideration on March 24, 2016. On May 12, 2016, Judge Lager upheld the defendants’ objection to Dr. Shah's testimony, affirming adherence to Judge Robinson's January order and denying reconsideration. Following Dr. Gorman's deposition on January 29, 2016, the defendants filed motions in limine to exclude his expert testimony regarding the standard of care and causation. Barnes opposed these motions. On July 26, 2016, Judge Lager ruled on the defendants' claims, determining that while Dr. Gorman met the minimum qualifications under General Statutes § 52-184c, there was insufficient factual basis to confirm his understanding of the applicable standard of care in Connecticut in 2011. Judge Lager allowed Barnes one final opportunity to establish this foundation at a scheduled Porter hearing on August 3, 2016. Regarding causation, Judge Lager precluded Dr. Gorman from testifying due to lack of qualifications, stating that his opinions were speculative and outside his expertise. On August 1, 2016, Barnes requested to disclose Dr. Shah as a causation expert; the defendants objected. Subsequently, Barnes indicated he would not produce Dr. Gorman for the August 3 hearing due to the ruling on causation. On that date, Judge Lager denied the request to introduce Dr. Shah and upheld the defendants' objection. Additionally, on August 1, 2016, the defendants filed a motion for summary judgment, arguing that Barnes could not provide expert testimony necessary to establish a prima facie case of medical malpractice. Barnes opposed this motion. On August 10, 2016, after hearing arguments, Judge Lager granted the motion for summary judgment, concluding that there was inadequate factual foundation for Dr. Gorman's qualification on the standard of care and reaffirming the preclusion of his causation testimony. As a result, Barnes lacked the necessary expert opinions to support his malpractice claims, leading to the defendants being entitled to summary judgment. An appeal followed, with further facts and procedural history to be detailed as needed, along with the legal principles governing medical malpractice actions, which require proof of the standard of care, deviation from that standard, and a causal connection to the claimed injury, typically necessitating expert testimony. The administratrix challenges the January 13, 2016 order on several grounds, asserting its impropriety based on (1) its classification as a sanction of preclusion under Practice Book § 13-4 (h), which she claims was not satisfied; (2) the absence of a defendant request to preclude Barnes from disclosing additional experts; and (3) the existence of good cause for allowing Barnes to disclose additional experts. The court rejects these claims, stating that the January 13 order was a valid case management decision made by Judge Robinson, who has the inherent authority to issue such orders. The court emphasizes that the interpretation of an order is a legal question, and that its terms should be construed according to their ordinary meaning and the context in which they were issued. The administratrix's argument that the order constituted a sanction under § 13-4 (h) is countered by the defendants, who assert it was a procedural decision. The court affirms that the order permits Barnes to supplement an already disclosed expert's opinions while prohibiting the disclosure of new experts. This interpretation aligns with the surrounding circumstances and the procedural history of the case. An order to preclude an expert witness's testimony can only be issued if (1) the preclusion sanction is proportionate to the noncompliance and (2) that noncompliance cannot be addressed by a less severe sanction. The administratrix claims that the January 13, 2016 order lacked the necessary hearing and findings. The defendants counter that this order was a case management decision within Judge Robinson's inherent authority, necessary for judicial economy and the timely resolution of cases. The court emphasized that justice delayed is justice denied and that judges must manage cases actively to prevent them from stagnating. The January 13, 2016 order was issued as a response to concerns over potential additional expert disclosures by Barnes, especially given the upcoming trial scheduled for January 19, 2016, and the expired expert disclosure deadline of September 1, 2013. Judge Robinson allowed an amendment to Dr. Gorman's disclosure while prohibiting the introduction of further experts to prevent manipulation of the process. The record does not indicate that the January 13 order stemmed from any violation of Practice Book 13-4, which is necessary to invoke sanction under 13-4 (h). Consequently, the order is classified as a case management decision, and the administratrix's reliance on 13-4 (h) is deemed misplaced. The administratrix contends that the January 13, 2016 order was improper because the defendants did not explicitly request Judge Robinson to prevent Barnes from disclosing additional experts. However, this claim is rejected based on the finding that the order was a case management decision, which judges have broad discretion to make for judicial economy. Despite the defendants not requesting such action, Judge Robinson acted within her authority to manage her docket by precluding Barnes from disclosing additional experts. Additionally, the administratrix argues that there was good cause for allowing Barnes to disclose more experts, citing Attorney Mirrione's initial unawareness of the need for additional experts due to prior case management by Hawkins. This argument is also dismissed, as the January 13 order is deemed a case management decision subject to abuse of discretion review, which places a heavy burden on the party seeking reversal. The trial court's authority to manage cases is essential for judicial efficiency, especially as the trial was imminent, having been scheduled previously, and the deadline for expert disclosures had passed. Furthermore, the administratrix claims that Judge Lager erred in upholding the January 13 order. However, on January 19, 2016, Judge Lager issued a scheduling order that did not allow for additional expert disclosures and later reiterated her adherence to the January 13 order, identifying it as clear and direct. Judge Lager declined to hear reargument on the order, stating that Barnes needed to seek reconsideration from Judge Robinson, who was the appropriate authority. Judge Lager indicated that the January 13, 2016 order was considered the law of the case but later issued a modified scheduling order that did not allow Barnes to disclose additional experts. After Judge Robinson denied Barnes’ motion for reargument regarding the January 13 order, the parties argued before Judge Lager about the defendants' objection to Barnes’ expert witness Dr. Shah. Barnes’ counsel contended that Judge Lager was not bound by the January 13 order and could assess its validity. Judge Lager clarified that she had mistakenly referred to it as the law of the case and that she could not revisit it as it was a discovery sanction under Judge Robinson’s authority. In her May 12, 2016 order, Judge Lager sustained the defendants' objection to Dr. Shah’s disclosure and precluded his expert opinion, maintaining adherence to the January 13 order, as Judge Robinson had not reconsidered it. The administratrix claimed Judge Lager erred by treating the January 13 order as law of the case; however, the record showed that Judge Lager did not rely on that doctrine. Instead, she emphasized that Judge Robinson was the proper authority for adjudicating motions related to that order. Additionally, the administratrix contended that Judge Lager erred in precluding Dr. Gorman from providing expert opinions on standard of care and causation. The court clarified that the trial court has discretion to preclude expert testimony, which is reviewed on appeal for abuse of discretion. Expert testimony is admissible when the witness possesses special, relevant skills or knowledge, is not common to laypersons, and would assist the court or jury in resolving the issues, requiring proper qualification and factual basis for the opinion. Judge Lager's decision to exclude Dr. Gorman's opinion on the standard of care is upheld. Under General Statutes § 52-184c(a), in civil actions for personal injury or wrongful death due to alleged negligence by a healthcare provider, the claimant bears the burden of proving by a preponderance of the evidence that the provider's actions breached the prevailing professional standard of care. This standard is defined as the level of care, skill, and treatment deemed acceptable by reasonably prudent providers in similar circumstances. For healthcare providers certified as specialists, a "similar health care provider" must be trained and certified in the same specialty. If the provider treats a condition outside their specialty, a relevant specialist may be considered a "similar health care provider." Additionally, any healthcare provider can testify as an expert if they meet the criteria of being a similar provider or possess adequate training, experience, and knowledge in a related medical field, gained from practice or teaching within five years prior to the incident. The Supreme Court has clarified that the law does not eliminate the fundamental requirement for an expert to understand the standard of care applicable in a specific situation. 52-184c (d) maintains that the trial court has discretion to assess the qualifications of expert witnesses in medical malpractice cases, establishing minimum standards for such qualifications. The court must ensure that an expert has adequate knowledge of the prevailing standard of care relevant to the case. In Grondin v. Curi, it was emphasized that failing to evaluate an expert's qualifications could undermine the court's evidentiary gatekeeping role. In the procedural context, after Dr. Gorman's deposition on January 29, 2016, the defendants moved to exclude his standard of care opinion, arguing he was unqualified. During a hearing on July 15, 2016, Judge Lager permitted the submission of affidavits from both Dr. Gorman and the defendants’ expert, Joseph Treadwell. By July 26, 2016, Judge Lager determined that Dr. Gorman met the minimum qualifications under 52-184c due to his active practice in podiatric medicine during the relevant period in 2011. However, upon reviewing the affidavits and deposition, the judge found Dr. Gorman lacked sufficient knowledge of the prevailing standard of care in Connecticut, particularly noting that Gorman's claim about the equivalence of standards between Pennsylvania and Connecticut was unsupported. Judge Lager offered Barnes a final chance to establish Dr. Gorman's qualifications through a hearing on August 3, 2016, but following the ruling that Dr. Gorman would be precluded from testifying on causation, Barnes opted not to present him. The hearing on August 3 included discussions about Barnes’ attempt to introduce Dr. Shah as a new causation expert, which was met with objections from the defendants. Judge Lager ultimately denied this request and addressed the defendants' motion for summary judgment. On July 26, 2016, the court determined there was insufficient factual evidence to conclude that Dr. Gorman understood the applicable standard of care for podiatrists in Connecticut. The court provided Barnes the opportunity to establish this foundation, which was not accomplished. On August 10, 2016, during arguments on the defendants' motion for summary judgment, Barnes submitted an affidavit from Dr. Gorman dated August 8, 2016. In the subsequent ruling on August 11, Judge Lager noted the lack of foundational evidence concerning Dr. Gorman's knowledge of the prevailing professional standard of care for podiatrists in Connecticut in 2011. Although Dr. Gorman claimed that the standard of care was consistent nationwide, his assertions were deemed conclusory and lacking in evidentiary support. Judge Lager highlighted Dr. Gorman's deposition testimony, which indicated he was unfamiliar with the specific standard of care in Connecticut. Consequently, the judge concluded that Dr. Gorman's affidavits did not provide the necessary foundation to qualify him as an expert on the standard of care, effectively precluding his opinion. The administratrix argued that Judge Lager erred by excluding Dr. Gorman's testimony based on the notion of a national standard of care and Dr. Gorman's extensive experience in podiatry. However, the court maintained that the critical issue was Dr. Gorman's knowledge of the standard of care applicable to Dr. Daddio in Connecticut, which he did not demonstrate. Podiatrists earn continuing education credits through the same seminars and conferences, and various organizations in the U.S. provide courses related to podiatric medicine. The standard of care for podiatrists is uniform across states, including Connecticut. Judge Lager determined that Dr. Gorman's affidavit did not adequately support his opinions regarding the standard of care, lacking the necessary foundation to establish his expertise. Consequently, she did not abuse her discretion in excluding his opinion on the standard of care. Regarding the claim concerning causation, all medical malpractice cases require that a defendant's conduct be the proximate cause of the plaintiff's injuries. The connection between conduct and injury must be established on a basis stronger than mere speculation. Causation involves two components: causation in fact, which asks whether the injury would have occurred without the defendant's action, and proximate cause, defined as an actual cause that significantly contributes to the harm. Proximate cause relates the injury back to the negligent act, assessing whether the harm was within the foreseeable risks associated with that negligence. The determination of causation and proximate cause is fundamental to establishing a negligence claim. Following Dr. Gorman’s deposition on January 29, 2016, defendants filed motions in limine to exclude his expert testimony regarding causation, arguing it lacked factual support, exceeded his expertise, and was speculative. On July 15, 2016, arguments were heard on this matter, and subsequently, affidavits from both Barnes and Dr. Treadwell were filed. On July 26, 2016, Judge Lager ruled to preclude Dr. Gorman’s causation testimony, noting that while he had experience with vascular issues in diabetic patients, he was not a vascular specialist and had deferred to vascular surgeons regarding causation in his deposition. Judge Lager concluded that Dr. Gorman's opinions were speculative and lacked a solid basis, as he could not definitively identify the cause of Barnes' amputations or eliminate other potential causes. The administratrix argued that Dr. Gorman's extensive experience allowed him to testify that Barnes' injuries stemmed from an untreated infection leading to complications; however, Dr. Gorman acknowledged uncertainty about whether the amputations could have been prevented and indicated that a vascular surgeon was necessary to determine if the defendants' negligence contributed to the outcomes. The administratrix has not provided any evidence to challenge Judge Lager’s ruling that Dr. Gorman could not testify on whether the defendants’ breach of care caused Barnes’ foot amputations. Consequently, there is no indication that Judge Lager abused her discretion in excluding Dr. Gorman's causation opinion. The administratrix further argues that Judge Lager erred by precluding the disclosure of additional experts and Dr. Gorman's opinions, claiming this led to genuine issues of material fact that should have prevented summary judgment for the defendants. However, the court determined that Judge Lager appropriately barred these disclosures, resulting in Barnes' inability to present expert testimony on the standard of care, breach, or causation needed to establish a prima facie medical malpractice case, as supported by precedents. Therefore, the summary judgment favoring the defendants is affirmed, with concurrence from the other judges. Additionally, Kenneth Barnes passed away during the appeal, leading to the substitution of Sherry West Barnes as the administratrix. The defendants also raised a statute of limitations defense, which Barnes denied. Various expert witness disclosures and motions related to the admissibility of Dr. Gorman’s opinions were noted, with the court scheduling further discussions regarding the admissibility of expert testimony under State v. Porter. In some rare instances, expert testimony may not be necessary for a medical malpractice claim. An exception to the requirement for expert medical opinion evidence exists when a medical condition is evident or common. Expert testimony regarding causation may not be necessary if the plaintiff's evidence sufficiently supports a lay jury's reasonable belief. In cases of gross professional negligence, expert opinion may also be waived. Generally, expert testimony is required to establish the standard of care and the defendant's failure to meet that standard unless the negligence is grossly apparent. The administratrix does not assert any exceptions to the need for expert testimony in this case. The January 13, 2016 order, which the administratrix characterizes as a sanction, is assessed against the test from Millbrook Owners Assn. Inc. v. Hamilton Standard, which requires a clear order, evidence of violation, and proportional sanctions. The court clarifies that the January 13 order was a case management decision, not a sanction for a discovery violation, making Millbrook irrelevant. During a subsequent hearing, the characterization of the January 13 order as a sanction was raised, but the court emphasizes that its interpretation is a legal question not subject to deference. Concerns were expressed regarding the potential disclosure of additional expert witnesses by Barnes, and the defendants objected to this possibility. Although the administratrix claims harm from the January 13 order, the court concludes that there was no abuse of discretion in issuing the order, rendering this claim unnecessary to address. The administratrix contended that Judge Robinson erred in denying Barnes’ motion for reargument and reconsideration of a prior order. During oral arguments, the administratrix’s counsel clarified that the appeal focused on Judge Robinson's decision to exclude additional expert testimony rather than the denial of the reargument. This statement was interpreted as an abandonment of the claim regarding the denial of the reargument motion, leading the court not to address that issue. Furthermore, the administratrix alleged that Judge Robinson failed to grant Barnes a continuance to disclose an additional expert; however, there was no evidence in the record of such a request, rendering this claim meritless. At the time of the March 4, 2016 argument, Barnes had not reasserted the motion for reargument and reconsideration. The January 13, 2016 order was classified as a case management decision, and the law of the case doctrine allows a court to treat prior rulings as binding unless there are new circumstances. A judge has the authority to vacate or modify prior rulings by another judge in the same case. Additionally, Connecticut law permits qualified expert witnesses to provide testimony that aids in understanding evidence or determining facts. Dr. Daddio, a certified podiatrist, falls under the definition of a health care provider as outlined in relevant statutes. Section 52-184c applies exclusively to health care providers who are not certified by the relevant American board as specialists, lack training and experience in a medical specialty, or do not represent themselves as specialists. This distinction is crucial as it renders the subsection inapplicable in the current case. Additionally, Section 1-3 of the Connecticut Code of Evidence outlines that preliminary questions regarding a witness's qualifications, privileges, or evidence admissibility are determined by the court, with conditions for admissibility based on connecting facts. The administratrix contends that Judge Lager mistakenly found Dr. Gorman did not meet the criteria of 52-184c. However, it is noted that Judge Lager actually concluded Dr. Gorman fulfilled the requirements of subdivision (2) of the same statute. During deposition, Dr. Gorman indicated that Dr. Daddio was responsible for overall management (referred to as "captain of the ship") and expressed uncertainty about whether Connecticut follows the same standard as Pennsylvania.