Verdicts

Untimely Expert Evidence

According to a New York appellate court, judges have discretion to consider expert affirmations filed even after all discovery is supposed to have been completed. Rivers v. Birnbaum, 2012 NY Slip Op 6935 (App. Div., 2d Dept. 10/17/12).

The plaintiff in this medical malpractice action alleged that several medical providers failed to diagnose in her a rare form of uterine cancer (choriocarcinoma). The cancer spread throughout several other areas of her body, requiring her to undergo extensive chemotherapy treatments. She is now in remission.

Prior to trial in New York, when discovery in a civil action is completed, a note of issue is filed. In this case, all the defendants except for one of the doctors moved for summary judgment, attaching to their motion papers expert affirmations supporting their contentions that they had not departed from the standard of care. The trial judge, Suffolk County Supreme Court Justice Ralph Gazzillo, took those affirmations into consideration before granting the motions.

The plaintiff appealed, relying on the Appellate Division, Second Department's, 2008 decision in Construction by Singletree v. Lowe, 55 AD3d 861, in which the same appeals court affirmed a trial judge's decision not to consider a plaintiff's expert statements submitted after the note of issue. The court here noted, however, that while Civil Practice Law & Rules (CPLR) 3101(d)(1)(i), requires timely disclosure of expert witnesses and of their expected testimony, “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph.” Therefore, stated the court, “the statutory scheme provides that, even where one party requests trial expert disclosure during discovery pursuant to CPLR 3101(d)(1)(i), a recipient party who does not respond to the request until after the filing of the note of issue and certificate of readiness will not automatically be subject to preclusion of its expert's trial testimony.” The flexibility of the law, the Rivers court continued, “implicitly recognizes that parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary.” As in Singletree, the trial court may choose to disregard late-disclosed expert affirmations, but it is not required to do so. Thus, the Rivers trial court's decision to consider the moving defendants' late-identified expert statements was not error.

The plaintiff is unlikely to appeal the decision, according to her attorney, Mark Bower.

No Ambiguity in Standing Order

The Supreme Court of Kentucky has affirmed a decision excluding from trial evidence that a hospital standing order was ambiguous, on the basis that the professionals to whom the order was addressed were perfectly clear and in agreement as to what it meant. Tucker v. Women's Care Physicians of Louisville, 2012 Ky. LEXIS 157 (Ky. 10/25/12).

Due to infection, Mindi Tucker died a few days following the caesarian delivery of her third child. She had not been given the dose of the antibiotic Cefotan that her obstetrician's practice group kept on standard order, to be administered to mothers during caesarian deliveries. That order states: “For all C-sections: Have 2 grams of Cefotan prepared for infusion at the time of cord clamping.”

The deceased's estate brought suit against several health care providers, including Mindi Tucker's obstetrician, Dr. Susan Bunch. The estate sought to introduce expert testimony to the effect that the standing order was vague ' it could mean that the Cefotan should be administered, or it could mean only that it should be made readily available ' and that, because of this, it had been Dr. Bunch's duty (which she breached) to order the Cefotan administered. However, both Dr. Bunch and the attending nurse testified in deposition and at trial that they understood the order to mean that the nurse should prepare the Cefotan, charge it to the patient, and give it to the anesthesiologist, who would then administer it to the patient. The nurse admitted that she had failed to prepare the Cefotan in this instance because she was overly distracted by the very agitated expectant mother. The trial court concluded that it was the doctor's and nurse's perceptions of the meaning of the order that mattered, and those actors agreed that the nurse was supposed to see that the antibiotic was given to the anesthesiologist and that Dr. Bunch was not responsible for directly ordering the Cefotan to be administered to the patient. As there was no ambiguity in the nurse's eyes, the proffered expert testimony was deemed irrelevant, and was excluded.

Kentucky's high court upheld the exclusion, concluding that the trial court “made a sound decision not to allow useless expert opinion which could only serve to focus the jury's attention on a collateral non-issue. This function is exactly what a trial court is supposed to do.”

Two justices dissented, pointing out that notes made by Dr. Bunch after the patient's death stated that she (or someone else) had “opted” not to order the antibiotic. “[W]hy in the world,” they asked, would Dr. Bunch have written that statement if the standing order were an unequivocal command that the antibiotic should be administered? The dissent concluded that the plaintiff's proffered expert testimony might have clarified this issue, and so it should have been admitted.

Untimely Expert Evidence

According to a New York appellate court, judges have discretion to consider expert affirmations filed even after all discovery is supposed to have been completed. Rivers v. Birnbaum , 2012 NY Slip Op 6935 (App. Div., 2d Dept. 10/17/12).

The plaintiff in this medical malpractice action alleged that several medical providers failed to diagnose in her a rare form of uterine cancer (choriocarcinoma). The cancer spread throughout several other areas of her body, requiring her to undergo extensive chemotherapy treatments. She is now in remission.

Prior to trial in New York, when discovery in a civil action is completed, a note of issue is filed. In this case, all the defendants except for one of the doctors moved for summary judgment, attaching to their motion papers expert affirmations supporting their contentions that they had not departed from the standard of care. The trial judge, Suffolk County Supreme Court Justice Ralph Gazzillo, took those affirmations into consideration before granting the motions.

The plaintiff appealed, relying on the Appellate Division, Second Department's, 2008 decision in Construction by Singletree v. Lowe , 55 AD3d 861, in which the same appeals court affirmed a trial judge's decision not to consider a plaintiff's expert statements submitted after the note of issue. The court here noted, however, that while Civil Practice Law & Rules (CPLR) 3101(d)(1)(i), requires timely disclosure of expert witnesses and of their expected testimony, “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph.” Therefore, stated the court, “the statutory scheme provides that, even where one party requests trial expert disclosure during discovery pursuant to CPLR 3101(d)(1)(i), a recipient party who does not respond to the request until after the filing of the note of issue and certificate of readiness will not automatically be subject to preclusion of its expert's trial testimony.” The flexibility of the law, the Rivers court continued, “implicitly recognizes that parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary.” As in Singletree, the trial court may choose to disregard late-disclosed expert affirmations, but it is not required to do so. Thus, the Rivers trial court's decision to consider the moving defendants' late-identified expert statements was not error.

The plaintiff is unlikely to appeal the decision, according to her attorney, Mark Bower.

No Ambiguity in Standing Order

The Supreme Court of Kentucky has affirmed a decision excluding from trial evidence that a hospital standing order was ambiguous, on the basis that the professionals to whom the order was addressed were perfectly clear and in agreement as to what it meant. Tucker v. Women's Care Physicians of Louisville, 2012 Ky. LEXIS 157 (Ky. 10/25/12).

Due to infection, Mindi Tucker died a few days following the caesarian delivery of her third child. She had not been given the dose of the antibiotic Cefotan that her obstetrician's practice group kept on standard order, to be administered to mothers during caesarian deliveries. That order states: “For all C-sections: Have 2 grams of Cefotan prepared for infusion at the time of cord clamping.”

The deceased's estate brought suit against several health care providers, including Mindi Tucker's obstetrician, Dr. Susan Bunch. The estate sought to introduce expert testimony to the effect that the standing order was vague ' it could mean that the Cefotan should be administered, or it could mean only that it should be made readily available ' and that, because of this, it had been Dr. Bunch's duty (which she breached) to order the Cefotan administered. However, both Dr. Bunch and the attending nurse testified in deposition and at trial that they understood the order to mean that the nurse should prepare the Cefotan, charge it to the patient, and give it to the anesthesiologist, who would then administer it to the patient. The nurse admitted that she had failed to prepare the Cefotan in this instance because she was overly distracted by the very agitated expectant mother. The trial court concluded that it was the doctor's and nurse's perceptions of the meaning of the order that mattered, and those actors agreed that the nurse was supposed to see that the antibiotic was given to the anesthesiologist and that Dr. Bunch was not responsible for directly ordering the Cefotan to be administered to the patient. As there was no ambiguity in the nurse's eyes, the proffered expert testimony was deemed irrelevant, and was excluded.

Kentucky's high court upheld the exclusion, concluding that the trial court “made a sound decision not to allow useless expert opinion which could only serve to focus the jury's attention on a collateral non-issue. This function is exactly what a trial court is supposed to do.”

Two justices dissented, pointing out that notes made by Dr. Bunch after the patient's death stated that she (or someone else) had “opted” not to order the antibiotic. “[W]hy in the world,” they asked, would Dr. Bunch have written that statement if the standing order were an unequivocal command that the antibiotic should be administered? The dissent concluded that the plaintiff's proffered expert testimony might have clarified this issue, and so it should have been admitted.