Vitali v. Southern New England Ear, Nose, Throat & Facial Plastic Surgery Group LLP
Disclosure of an expert's anticipated testimony on a categorical topic generally is sufficient to indicate that the expert's testimony may also include issues that are necessary to explain conclusions within that category. In May 2006, the plaintiff, Elaine Vitali, allegedly underwent a parotidectomy, to remove a benign tumor. In 2008, Vitali sued the defendants, alleging that Dr. Paul Fortgang breached the standard of care, because he did not identify and protect Vitali's facial nerve, and the facial nerve was injured. At trial, there was evidence that Fortgang identified a structure that could be the facial nerve and concluded it was not the facial nerve. Fortgang allegedly cut the structure, removed the benign tumor, and attempted to repair the structure, because he recognized it was the facial nerve. The plaintiff's expert, Dr. James Lucarani, opined that Fortgang should have continued to investigate the structure into the parotid gland, before he made the cut. The defendant's expert, Dr. Dale Rice, opined that Fortgang was not required to investigate the structure into the parotid gland. Asked whether Dr. Fortgang breached the standard of care for a board-certified otolaryngologist, the jury answered, "No." The plaintiff moved to set aside the defense verdict and for a new trial. The plaintiff maintained that Dr. Dale Rice was allowed to offer expert conclusions that were not included in the expert disclosure. In Klein v. Norwalk Hospital, a 2010 decision, the Connecticut Supreme Court wrote, "[D]isclosing a categorical topic . . . generally is sufficient to indicate that testimony may encompass those issues, both considered and eliminated, necessary to explain conclusions within that category." Here, Dr. Dale Rice was disclosed as an expert on the standard of care, causation and damages. The defendant's disclosure indicated that Dr. Dale Rice "will testify that injury of and/or cutting of a nerve during this surgical procedure is a risk of the procedure." The defendant's disclosure of Rice's anticipated testimony about the standard of care was adequate. The court found it difficult to credit the plaintiff's claim of unfair surprise or lack of fair notice, and it denied the plaintiff's motions.