Stella v. Spaulding and Fletcher Allen Health Care, Inc.

Robinson, J.,

¶ 23. 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 plaintiffs 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 plaintiffs 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. Plaintiffs complaint alleges that *238the 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, Y.R.C.R 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 *239of 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 plaintiffs 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)(1) 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 consid*240ered to be the exclusive method for learning such information”); Shackelford 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)© requires disclosure of only the specific matters listed therein, and is but one step in a multi-component discovery process available to litigants. The nonopenended 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.R 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)® 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)® was “to afford the questioner notice of the basic arguments the responding litigant intends to press at trial.” Workman, 807 F. Supp. at 645 (quotations omitted). Accordingly, “a response is adequate if it provides sufficient notice of the theories under which the answering party plans to proceed.” Id. at 646.

¶ 30. In a pivotal case on the issue, involving a third-party complaint against the manufacturer of a truck’s braking system *241brought 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)(1): 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 defendants in their motion to compel. Ante, ¶ 8. Plaintiff was not required to facilitate an expert-deposition-by-interrogatory. The fact that some questions posed by defendants — whether in a motion to compel or in Interrogatory 71 — remain unanswered, or unanswered to defendants’ satisfaction, does not mean that plaintiff has failed to comply with its discovery obligations pursuant to Rule 26(b)(4)(A)(i). The question *242presented by this case is whether plaintiffs expert disclosures were sufficient to give defendants “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, plaintiffs 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 plaintiffs claims.

¶ 34. Third, and related, plaintiffs 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 plaintiffs allegations is that defendant doctor failed to take appropriate postoperative 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, plaintiffs 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. *243Specifically, [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.

*244¶ 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)® 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)© in particular, by precluding plaintiff from proceeding at trial on the basis of theories or medical opinions not disclosed in discovery. Y.R.C.R 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 plaintiffs 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 plaintiffs plea to the court, presented in plaintiffs Emergency Motion For Clarification of The Court’s September 9, 2010 Entry Order and *245Request 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 plaintiff’s 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 plaintiffs 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 plaintiffs 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. Hasp, 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 plaintiffs 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, *246coupled 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.