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Annan v. Bridgeport Hospital

Connecticut Superior Court Judicial District of Fairfield at Bridgeport
Aug 18, 2009
2009 Ct. Sup. 14351 (Conn. Super. Ct. 2009)

Opinion

No. CV 04-040 93 11 S

August 18, 2009


MOTION FOR RECONSIDERATION


The matter presently before the court is a medical malpractice case brought by Robert Annan, individually and as administrator of the estate of Margaret Annan, against Bridgeport Hospital. Essentially, the complaint alleges that the decedent, Margaret Annan, while under the care and treatment of the defendant, suffered serious and permanent injuries, leading to her death on February 4, 2002.

Although Annan is a party in both a representative and individual capacity, I will refer, to him in the singular as he is, in fact, only one person.

This matter is scheduled for trial to begin on September 2, 2009. The subject motion for reconsideration was argued on August 11, 2009. The relevant background for the motion is as follows. On May 18, 2009, the court handled a discovery dispute, hearing argument on the defendant's February 17, 2009 Motion to Compel (#190), the plaintiff's March 5, 2009 objection (#196), and the defendant's April 1, 2009 reply brief (#201). The defendant, in its motion, stated that it was requesting a court order requiring Dr. Richard Zane, one of the plaintiff's expert witnesses, to disclose at his deposition the amount of income "derived from legal consulting" but also requested a court order requiring Dr. Zane "to respond to questions regarding his income derived from expert consulting employment." At the May 18 oral argument, the defendant indicated that he was seeking Dr. Zane's "overall income from expert-related activities."

Pursuant to the standing order of Judge Arthur Hiller, Chief Administrative Judge, Civil Division, "[w]hen a case has been assigned for trial, any . . . motion directed to discovery or deposition issues filed within six months of the trial date shall be heard by the presiding judge of the judicial district or a designee . . . the motion shall not be placed on the short calendar."

Dr. Zane, disclosed by the plaintiff as an expert on July 10, 2008, was deposed by the defendant on January 22, 2009. The parties appear to agree that Dr. Zane testified that "about 10-20 percent" of his income was derived from legal/medical consulting work, and that the estimation of 10 to 20% included all non-salaried activities, professional activities including writing, editing for journals, speaking engagements, and so forth. When asked by defense counsel to state his total income, plaintiff's counsel interposed an objection, and the witness declined to answer the question. Although the defendant's February 17, 2009 Motion to Compel indicates that excerpts from the deposition transcript were attached as an exhibit, the motion filed with the court does not include any such attachment, and as such, the only information the court has as to Dr. Zane's deposition testimony is what has been disclosed by counsel.

At the May 18 hearing, plaintiff's counsel objected to having Dr. Zane disclose the income he derived from legal consulting, and argued that Practice Book Section 13-4 was recently amended with regard to what has to be produced as it relates to experts, and that there was "nothing in there about income information."

Practice Book Section 13-4 was amended on June 30, 2008, with an effective date of January 1, 2009. However, the more recent amendment to Section 13-4 makes clear that the revisions referenced by counsel would not apply to this case and instead apply only to cases commenced on or after January 1, 2009. Regardless, § 13-4 in no way limits a party with respect to the scope of the inquiry at a deposition of an expert.

Based on the excerpt from Dr. Zane's testimony quoted by the defendant in its motion, the question posed to Dr. Zane, which went unanswered, appeared to relate to his total, overall income. However, the arguments advanced by both counsel, in their briefs as well as at the May 18 discovery dispute, centered on Dr. Zane's income from his consulting work. The defendant was somewhat inconsistent with respect to the relief it was requesting from the court, asking not only for Dr. Zane's income from legal consulting, but also asking for Dr. Zane's overall income derived from expert-related activities, which in my opinion is not necessary related to medical malpractice claims or litigation but also encompasses non-legal medical expertise such as second opinions, and the like. After argument, this court granted the motion in part and denied the motion in part, ruling that the defendant could inquire as to the amount of income generated by "IMEs, medical record reviews, deposition testimony and trial testimony and the percentage of the income that comprises." The parties agreed that the information would be limited to a five-year period.

On July 14, 2009, the plaintiff filed the subject motion for reconsideration. The basis for this motion was new information that has come to light since the court's original ruling. As outlined in the motion, plaintiff's counsel states that Zane was advised of the court's May 18, 2009 ruling. Zane then informed plaintiff's counsel, by letter dated June 30, 2009, that in order to comply, it would be necessary for his accountant to re-analyze his tax returns for the past four years, as the information was not readily available. Zane also reiterated his general desire to keep this information private, and stated that even if the information was easily accessible, he "view[ed] my family's finances as personal and confidential and would not be willing to share this information." The plaintiff argues that the court's order is not binding on Zane, and its functional effect is to bar Zane from testifying. The plaintiff's motion urges the court to reconsider its earlier ruling because, without Zane's testimony, the plaintiff faces dismissal of his case or will need a continuance to find another expert.

The court learned for the first time from the plaintiff's July 14, 2009 motion for reconsideration that "[Zane] did not know [at the deposition] how much he earned yearly from medical/legal work by itself." In short, Dr. Zane could not identify the amount of income he earned from his work as an expert in medical malpractice cases, nor did he or could he provide a breakdown of the percentage of his income derived from his work as an expert in medical malpractice cases, beyond the 10 to 20% range he gave for non-salaried income. Plaintiff further argued that the information sought was not readily available to Dr. Zane and would require a "substantial expenditure of accounting fees," who in any event was unwilling to divulge the information.

Essentially, Dr. Zane's testimony was that 80% of his income earnings was salary-based and 20% was not; of course, and as clarified at the argument for the motion for reconsideration, these figures did not include income for other family members nor do they include any investment income.

In support of its position, the plaintiff cites to inter alia, Sullivan v. Metro North R.R., 2007 U.S. District LEXIS 88938 (D.Conn. 2007) (Nevas, J.), a case this court had read and referred to when issuing its oral decision on May 18, 2009. The plaintiff argues that expert inquiry should be limited to the "Sullivan inquiry:-the percentage of his gross income earned from providing expert witness services. In Sullivan, the court stated "so long as [the expert] fully answers questions about the percentage of income he derived on an annual basis since 2002 from providing expert witness services, he need not produce his tax returns or other financial information . . ." Here, however, as the plaintiff concedes in his motion for reconsideration, Zane did not know how much money he earned from legal consulting, and the 10 to 20% breakdown was what he earned from non-salaried (and non-investment) income; as such, Zane would not be able to calculate the figures required for the "Sullivan inquiry."

In his motion, the plaintiff argues that the court should vacate its original order for the following reasons: "(1) it may severely prejudice the plaintiffs and its probative value (on an issue that is a collateral issue) is far outweighed by the potential for prejudice to the plaintiffs; (2) it will have a chilling effect on parties litigating cases that require expert testimony (especially plaintiffs who carry the burden of proof); and (3) it is unduly burdensome and oppressive."

In his motion for reconsideration, the plaintiff states as follows: "On May 18, 2009, the Court ruled that the defendant would be permitted to continue the deposition of Dr. Zane for the limited purpose of asking questions regarding the amount of money earned for medical/legal activities during each of the last 4 years. Dr. Zane testified at the first session of his deposition concerning the percentages of total income derived from medical/legal activities. Thus, providing information concerning the dollar amount would disclose Dr. Zane's total income from all sources." This is not entirely accurate. The court's order was for disclosure of his income from legal consulting; the 10 to 20% figure given by Dr. Zane was for all non-salaried income, including but not limited to legal consulting.

On July 20, 2009, the defendant filed its objection. The defendant argues that the court should deny the plaintiff's motion because (1) it is untimely; (2) the plaintiff's motion presents no new facts or law on which reconsideration may be granted; and (3) an expert's income derived from medical/legal consulting is relevant to the issue of bias.

DISCUSSION

"The granting of a motion for reconsideration . . . is within the sound discretion of the court . . . A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it." (Internal quotation marks omitted.) Magiante v. Niemiec, 98 Conn.App. 567, 575-77, 910 A.2d 235 (2006). When ruling on a motion for reconsideration, the trial court has the "power to undertake reconsideration that the trier believes to be warranted on equitable grounds." Id., 577. Nevertheless, "[t]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect and which has been overlooked or that there has been a misapprehension of facts . . . [A] motion to reargue . . . is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).

The defendant's first argument is that the motion for reconsideration should be denied as untimely. A motion for reconsideration is governed by Practice Book § 11-12, which is titled "Motion to Reargue." See, e.g. Weinstein v. Weinstein, 275 Conn. 671, 699-700, n. 21, 882 A.2d 53 (2005) (analyzing a motion for reconsideration under § 11-12). Section 11-12 provides in relevant part: "(a) A party who wishes to reargue a decision or order rendered by the court shall, within twenty-days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies . . . (b) The judge who rendered the decision or order may, upon motion of a party and a showing of good cause, extend the time for filing a motion to reargue. Such motion for extension must be filed before the expiration of the twenty-day time period in subsection (a)." The use of the word "shall" in § 11-12 suggests that the twenty-day timing requirement is mandatory. Moreover, our Supreme Court has stated that "[a] party only has twenty-days from the date of judgment in which to file a motion for reconsideration . . . After the twenty-days has passed, no such motions can be filed and the judgment becomes final." (Citation omitted.) Weinstein v. Weinstein, supra, 699-700, n. 21.

As the court issued its ruling on May 18, 2009, and the motion for reconsideration was not filed until July 14, 2009, the plaintiff's motion is clearly beyond the twenty-day time frame contemplated by § 11-12(a). Nevertheless, pursuant to Practice Book § 1-8, "[t]he design of [our rules of practice] being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." At oral argument in this matter, this court stated that in the event Zane refused to testify regarding his total income derived from medical/legal consulting, "[t]hen I suppose there'll be another motion to preclude his testimony which I think would have some merit. It should come to me. So if he makes that refusal then that's the next step, I suppose." The impetus for the present motion for reconsideration is Zane's refusal to testify in compliance with the court's order. Although this motion is a one for reconsideration as opposed to preclusion of the expert's testimony, this is precisely the situation that the court contemplated with its comments at the May 18, 2009 oral argument. The court specifically invited the parties to come before it should a problem arise with the May 18, 2009 ruling. Moreover, the attached letter from Zane is dated June 30, 2009, so the plaintiff might not have been aware of Zane's refusal to testify until after the twenty-day period for filing a motion for reconsideration had already passed. For all of these reasons, the court will rule on the merits of this motion. See, e.g., Rose v. Tomaso, Superior Court, judicial district of New Haven, Docket No. CV 97 0404577 (May 2, 2000, Devlin, J.) (27 Conn. L. Rptr. 265) (waiving twenty-day filing requirement under § Practice Book 11-12(a) for fairness considerations pursuant to Practice Book § 1-8).

The scope of expert disclosures is governed by Practice Book § 13-4. As discussed above, this rule has been the subject of several recent amendments, and as provided by revisions that were adopted by the Superior Court judges on June 22, 2009, the changes to § 13-4 only apply to cases that were commenced on or after January 1, 2009. As a result, the previous version of § 13-4 applies in the present case, and indicates that a party can obtain "[d]iscovery of facts known and opinions held by experts, otherwise discoverable under the provisions of [Practice Book §]13-2 and acquired or developed in anticipation of litigation or for trial . . ."

The newest revisions to Practice Book § 13-4, which will take effect on September 1, 2009, are available online at:http://www.jud.ct.gov/Publications/PracticeBook/pblj_071409_eff010110.pdf.

Practice Book § 13-2 provides in relevant part: "In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure . . . whether the discovery or disclosure relates to the claim or defense of the party seeking discovery . . . and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action . . . It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." (Emphasis added.) Given this standard, it is clear that the scope of discoverable information is broader than evidence that would be admissible at trial. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985). At trial, "[e]vidence tending to show the motive, bias or interest of an important witness is never collateral or irrelevant. It may be . . . the very key to an intelligent appraisal of the testimony of the [witness]." (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 641, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005). As the amount of an expert witness' remuneration is certainly relevant to the issue of potential bias, it is, generally speaking, proper for an expert witness to be asked questions on this topic at his deposition.

There are few Connecticut cases on point. In Drake v. Bingham, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003332 (March 25, 2008, Jones, J.), the court entertained a motion to reargue a previous ruling ordering an expert witness to disclose certain tax documents. Judge Jones' decision examined some of the cases cited by the plaintiff's motion, and determined that none of them were controlling, as they were either Superior Court or federal cases. As a result, the court upheld its previous determination that it had the authority to order the expert to disclose the tax documents. The court, did, however, grant reargument on the issue of whether the documents could properly be obtained through the deposition notice which was served. Judge Jones did not author an opinion on how he decided the case following reargument, so this court is not aware of how the case was ultimately resolved.

In contrast, in Opotzner v. Bass, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 96 254963 (December 30, 1998, Beach, J.), the court ruled on a "motion to quash/protective order and objection to subpoena duces tecum" directed to the defendant's medical experts in a personal injury case. Judge Beach held that while the experts would not have to turn over their corporate income tax returns and 1099s, they would, to the extent possible, be required to provide billings for their medical record reviews and independent medical examinations. Finally, the plaintiff provided the court with the transcript of oral argument from Landry v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 03 0175869 (May 14, 2007, Cremins, J.), where the court denied a motion to compel an expert's tax returns.

In Sullivan v. Metro North Railroad Co., supra, the plaintiff noticed the deposition of the defendant's medical expert, and requested copies of the doctor's tax returns, or other financial documents demonstrating the expert's income from performing independent medical examinations, testifying in court or at depositions, and total income from practicing orthopedic surgery. The defendant moved for a protective order. Analyzing the federal rules of civil procedure, Judge Nevas wrote that "[t]here is no question that the information sought by [the plaintiff] is relevant to bias impeachment, and therefore, falls within the scope of permissible discovery under Rule 26(b)(1) . . . Nevertheless, the court finds that the document requests are `overkill,' as one court put it in a similar case . . . [T]he requests threaten to open up collateral issues about proper expert compensation, will result in similar requests regarding other experts in the case, and may cause qualified experts in future litigation to withhold their expertise for fear that opposing counsel will root around their financial records, search for evidence of bias . . . This does not mean, however, that [the plaintiff's] counsel cannot pursue these lines of inquiry at [the expert's] deposition. As to the personal financial information, the jury readily should be able to assess possible bias on the part of an expert witness if they are made aware of the total percentage of his or her gross income that is earned from providing expert witness services . . . Therefore, the court finds that so long as [the expert] fully answers questions about the percentage of income he derived on an annual basis since 2002 from providing expert witness services, he need not produce his tax returns or other financial information . . ." (Citations omitted; internal quotation marks omitted; emphasis added).

The decisions cited above are the only written decisions in Connecticut that this court is aware of. In summary, in Sullivan v Metro North, supra, Judge Nevas ordered the medical expert to disclose the percentage of his gross income from providing expert witness services; in Opotzner v. Bass, supra, Judge Beach required the medical experts to provide billings related to medical record reviews and independent medical examinations; and in Drake v. Bingham, supra, Judge Jones held that the expert could be required to provide certain tax records.

As it stands in the present case, the defendant has no information as to the amount of income Dr. Zane earns from legal consulting. While the defendant has been given a range of 10 to 20%, representing what Dr. Zane earns from non-salaried work, that 10 to 20% is not limited to what he earns from legal consulting, but also includes his income from other professional activities such as lectures and speaking engagements, writing and editing, and the like. The defendant has not been provided with a scintilla of evidence on the simple question of what Dr. Zane earns as a legal consultant, nor has the defendant been provided with a meaningful estimate as to the percentage of income Dr. Zane receives solely as a legal consultant.

The plaintiff's argument that Dr. Zane, by disclosing the amount of income he earns as a legal consultant, would be disclosing "[his] total income from all sources," fails. It would simply be impossible to extrapolate Dr. Zane's total income from all sources if only given his income from legal consulting combined with the 10 to 20% figure of income he earns from all his non-salaried activities. At best, given the two figures, one could make an educated guess as to a range of the gross income he generates from his earnings, putting aside any investment income.

The decision to order Dr. Zane to disclose the amount of his income generated from legal consulting was not taken lightly, although I would note that it was taken without the knowledge that Dr. Zane had been asked that question at his deposition, and he did not know the answer. Nonetheless, the order stands. The court is mindful of the expectations of privacy and confidentiality one has with respect to one's personal finances, as well as the possible chilling effect requiring such disclosure might have on other potential expert witnesses. However, upon balance with a party's need to explore the motive, bias, or interest of an expert witness, the court, having reconsidered its decision, denies the plaintiff's motion, and orders the witness to disclose the amount of income he derives from his work as a legal consultant, in this situation where the witness did not identify a clear percentage of income he earned as legal consultant. If in fact Dr. Zane remains unable to answer the question in light of the order of the court, it can be dealt with at the time of trial.


Summaries of

Annan v. Bridgeport Hospital

Connecticut Superior Court Judicial District of Fairfield at Bridgeport
Aug 18, 2009
2009 Ct. Sup. 14351 (Conn. Super. Ct. 2009)
Case details for

Annan v. Bridgeport Hospital

Case Details

Full title:ROBERT ANNAN, ADMINISTRATOR OF THE ESTATE OF MARGARET ANNAN ET AL. v…

Court:Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Aug 18, 2009

Citations

2009 Ct. Sup. 14351 (Conn. Super. Ct. 2009)
48 CLR 240