Verdicts

The trial featured a battle of expert otolaryngologists. The defendant's expert, Dr. Dale Rice, testified that transection of the facial nerve was an unavoidable risk and that Dr. Fortgang met the standard of care. The jury returned a defense verdict. The plaintiff appealed, arguing that Dr. Rice testified about matters that were not properly disclosed prior to trial, pursuant to Connecticut Practice Book ' 13-4(4), and it resulted in an unfair surprise. Connecticut Practice Book '13-4 requires the disclosure of: 1) the name of the expert witness; 2) the subject matter about 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. A disclosure meets the requirements of Practice Book 13-4(4) if it informs the opponent about the basic nature of a party's claim. The defendants' disclosure stated, “[Rice] will testify about how this surgery is performed, and how it was performed by Dr. Fortgang and how the nerve was identified.” The Connecticut Appellate Court found that the defendants clearly disclosed that Rice would testify about the standard of care, breach of that standard and proximate cause. “The fact that Rice's testimony actually provided greater detail and specificity than had been disclosed,” wrote the court, “is irrelevant.”

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Plaintiff Not Unfairly Surprised by Greater Detail in Expert Testimony

The Connecticut Appellate Court has affirmed that a party is properly informed of the substance of the opposing litigant's expert's expected testimony under Connecticut law if he is told the basic substance of that testimony, even if the testimony actually given in court goes into greater detail. Vitali v. Southern New England Ear, Nose, Throat and Facial Plastic Surgery Group, 2014 Conn. App. LEXIS 480 (Connecticut Appellate Court, 11/24/14).

To remove the benign tumor in the plaintiff's right parotid gland, the plaintiff's surgeon, Dr. Paul Fortgang, transected the facial nerve and then repaired it. After the operation, the plaintiff allegedly experienced difficulty smiling, raising her right eyebrow and closing her right eyelid. The plaintiff sued Dr. Fortgang and his medical practice for medical malpractice, and alleged that Fortgang did not properly identify and protect the facial nerve.

The trial featured a battle of expert otolaryngologists. The defendant's expert, Dr. Dale Rice, testified that transection of the facial nerve was an unavoidable risk and that Dr. Fortgang met the standard of care. The jury returned a defense verdict. The plaintiff appealed, arguing that Dr. Rice testified about matters that were not properly disclosed prior to trial, pursuant to Connecticut Practice Book ' 13-4(4), and it resulted in an unfair surprise. Connecticut Practice Book '13-4 requires the disclosure of: 1) the name of the expert witness; 2) the subject matter about 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. A disclosure meets the requirements of Practice Book 13-4(4) if it informs the opponent about the basic nature of a party's claim. The defendants' disclosure stated, “[Rice] will testify about how this surgery is performed, and how it was performed by Dr. Fortgang and how the nerve was identified.” The Connecticut Appellate Court found that the defendants clearly disclosed that Rice would testify about the standard of care, breach of that standard and proximate cause. “The fact that Rice's testimony actually provided greater detail and specificity than had been disclosed,” wrote the court, “is irrelevant.”

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