Protect Your Objections – Timely Objections to Inadequate Expert Disclosure
The Court of Appeals’ decision in Rivera v Montefiore Medical Center (2016 NY Slip Op 06854 [October 20, 2016]) concerned the adequacy of defendant’s expert disclosure, and the timeliness of plaintiff’s objection to the same.
Rivera is a medical malpractice action, commenced by plaintiff in Bronx County on behalf of her deceased son. Decedent entered defendant hospital with symptoms of pneumonia (at 11:45 am), and after being admitted to an area where vital signs were not continuously monitored (at 11:00 pm), died at some point in a forty-minute window (sometime between 4-4:40 am). The autopsy report indicated the cause of death as bronchopneumonia complicated by diabetes.
During discovery, the parties exchanged expert disclosure. Defendant’s disclosure included, among other things, a statement that defendant’s expert would “testify as to the possible cause of the decedent’s injuries and contributing factors…[and] on the issue of proximate causation” … and that the expert’s testimony would be based on the “expert’s knowledge and experience…and [the] trial testimony.” (Rivera v Montefiore Med. Ctr., 123 AD3d 424 [1st Dept 2014]). Upon receipt of defendant’s expert disclosure, plaintiff objected to defendant’s failure to include the date of the expert’s residency. Defendant cured the deficiency, and no other objection was made prior to the commencement of the trial.
In the course of trial, plaintiff set forth her evidence to prove that decedent had died due to bronchopneumonia. In proving her case, plaintiff called internal medicine and cardiology experts. Her cardiology expert conceded on cross-examination there was a possibility that the decedent’s death occurred because of a sudden and unexpected cardiac event.
After plaintiff’s proof, in anticipation of defendant’s expert, plaintiff made an in limine application to preclude defendant’s expert from giving “any testimony…regarding any possible causes of the decedent’s death” on the grounds that the disclosure statement “did not include any reasonable detail” as to the possible causes of decedent’s death. The motion was denied as untimely by the trial court. Plaintiff did not make any request for an adjournment. After denial of plaintiff’s in limine application, defendant’s expert was called to the stand and testified that decedent’s death was caused by a sudden, unexpected cardiac arrhythmia, not a bronchopneumonia as reported in the autopsy.
Ultimately, the jury found defendant hospital liable for failure to admit the decedent to an area where he would be continuously monitored. However, the jury did not award any damages for conscious pain and suffering, indicating the jury credited the defense expert’s opinion that the decedent’s death had been sudden, and caused by a cardiac event. The plaintiff’s subsequent motion to strike this testimony for failure to include the theory in the expert disclosure was likewise denied as untimely made.
Following trial, plaintiff moved to set aside the verdict for conscious pain and suffering, and strike from the record all testimony that the decedent’s death was a result of sudden cardiac arrest. The trial court denied plaintiff’s motion.
On appeal, the First Department upheld the trial court’s decision, noting that “plaintiff was not justified in assuming the defense expert’s testimony would comport with the conclusion reached by the autopsy report, and plaintiff cannot now be heard to complain that defendant’s expert improperly espoused some other theory of causation for which there was support in the evidence.” (Id. (emphasis added)). In addition to their expert, defendant also elicited testimony from the emergency room attending physician that, upon a review of the medical record, he believed the decedent died of a cardiac arrest. This evidence, in conjunction with the testimony elicited on cross from plaintiff’s expert, appeared to be instrumental to the First Department’s decision.
The Court of Appeals’ decision echoed the First Department’s rationale, noting that it was within the trial court’s discretion to deny the motion to preclude based on the timing of the motion, without regard for the content of defendant’s disclosure. The Court indicated that any alleged deficiency in defendant’s disclosure was “readily apparent” and this circumstance is not analogous to a misleading or inconsistent disclosure.
The practical implications of this decision may appear obvious – expert disclosure must be sufficiently detailed to assure that your strategy of the case is clearly outlined, and not prohibited from being set forth by your expert. Additionally, a party must be sure that all objections are made in a timely fashion, and reserved in the event the issue is not clear on its face.
From a strategic standpoint, however, it is unclear as to whether this decision will have positive implications for defendants in a medical malpractice action. In this case, defendant benefitted from the strategy of providing a vague expert disclosure for two reasons: first, its adversary did not timely object to what was clearly a deficient 3101(d) disclosure; and perhaps more importantly, defendant successfully elicited testimony from plaintiff’s expert that confirmed the defense theory on causation. Although not expressly articulated by the Court of Appeals, a review of its decision suggests that a different outcome may have resulted had plaintiff’s expert not offered testimony crediting defendant’s causation theory on cross-examination. In sum, the decision is fact-specific and replicating defendant’s strategy is likely not the best practice.
By: Jennifer Tarolli, Associate Attorney
If you have any questions about this article or any other legal matter. Please do not hesitate to contact Jennifer at 585.263.9544.
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