Medical Malpractice Law: Eliminate Unnecessary Delays In Discovery

, The Connecticut Law Tribune

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How many times have you had to brief a motion for protective order filed by a defendant arguing that the defendant must not be deposed until after the plaintiff? And how many times have you had to wait for the defense disclosure of an expert because the defense claims that an expert cannot be disclosed until all plaintiff's experts and all fact witnesses have been deposed? And how many times has discovery been substantially delayed and a trial postponed because plaintiff's counsel or the court has acquiesced in these arguments?

Enough. There should be no priority in deposition scheduling absent exceptional circumstances where manifest injustice or substantial prejudice would result; and there should be simultaneous disclosure of expert witnesses with an opportunity for a further simultaneous disclosure of rebuttal experts.

Most often these issues arise in medical malpractice and product liability claims. The argument by the defense is that the plaintiff brought the claim and should be required to submit to deposition and disclose all expert testimony because, in the absence of such revelations by the plaintiff, the defendant does not know the basis of the claims and cannot defend. Although this argument may have some popular appeal (perhaps because in the criminal context a defendant is entitled to be apprised of the charges made against him), it is misguided.

In Connecticut there is no Practice Book rule or appellate authority resolving these issues. As to the priority in deposition scheduling, there is a divide of trial court opinion. Those who opine that the defendant need not submit to a deposition prior to the plaintiff acknowledge that there is no Practice Rule supporting this opinion, but they nevertheless reason that the efficient and orderly progression of discovery should allow the defendant to discover the factual basis of plaintiff's claim. See, for example, Contillo v. Doherty, 2011 Conn. Super. LEXIS 686 (Conn. Super. Ct. Mar. 17, 2011).

Those who rule that a plaintiff who first notices a defendant deposition, often at the time of service of the complaint, is allowed to proceed first opine that there is no rule of priority and that a properly noticed deposition must proceed absent the granting of a protective order under Practice Book section 13-5. See, for example, Downs v. Trias, 2008 Conn. Super. LEXIS 1995 (Conn. Superior Cour, Aug. 6, 2008).

Since the efficient and orderly progression of discovery is best served when depositions proceed upon proper notice, this then begs the question: if a motion for protective order is requested, should a protective order be granted? The answer should be rarely and only upon a showing of exceptional circumstances. A protective order under Practice Book section 13-5 is intended by its terms to protect a person from "annoyance, embarrassment, oppression, or undue burden or expense" and must be for "good cause." "Good cause has been defined as a sound basis or legitimate need to take judicial action." (Welch v. Welch, 48Conn. Sup. 19, 20 (2003)). A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements. Conn. Podiatric Med. Association v. Health Net of Conn. Inc., 2006 Conn. Super. LEXIS 452. Absent a weighty showing, appearing for a properly noticed deposition in a civil proceeding should not be viewed by the judiciary as annoying, embarrassing, oppressing or unduly burdensome. If the order of deposition scheduling alone were to be viewed in this light, the standard for granting a protective order is gutted.

The defendant is provided notice of the allegations made in the complaint. In a medical malpractice claim, the defendant is further notified of the allegations made in the opinion letter which must be attached to the complaint (See Connecticut General Statutes, 52-190a). A civil proceeding is a search for the truth. The truth seeking function is well-served by allowing depositions to proceed as early as possible before memories fade and evidence is lost or disappears. The facts to which a defendant will testify under oath should not change depending on what the plaintiff or other witnesses say.

Federal Rule of Civil Procedure 26(d), establishes no priority in deposition scheduling. The federal court in Keller v. Edwards, 206 F.R.D. 412, 416-417(D. MD 2002), noted the history and purpose of FRCP 26(d) and outlined a number of factors which the court should consider in determining discovery priority in the medical malpractice context:

"[T]he answer to the question of whether a medical malpractice defendant should be deposed before the plaintiff and her expert witness, or vice versa, depends on the circumstances of each case. Factors that influence the decision include: (a) the specificity of the allegations of negligence in the pleadings and the plaintiff's [certification]; (b) the complexity of the claim; (c) the number of defendants sued, and how clearly it may be determined what each allegedly did that was negligent; (d) whether formal or informal discovery already has taken place that informs the defendant of the factual basis for the claims; (e) the presence or absence of articulable prejudice to either the plaintiff or the defendant by delaying the deposition of the defendant until after the plaintiff and her standard of care expert have been deposed; and (f) the plaintiff's need to obtain sufficient information from the defendant to enable plaintiff's expert witness to prepare complete Rule 26(a)(2)(B) disclosures. It is the obligation of counsel when filing either a motion to compel the defendant's deposition, or a motion for a protective order to prevent it, to bring to the court's attention relevant facts to address these factors."

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  • trishhayn

    There is little control by the court over discovery period. Nothing applied the same way twice in my experience. Too much is left to the discretion of the sitting Judge. Insurance companies are allowed to play their games for years with no time limits much to the dismay of the injured. There is no consistency anywhere. It's like rolling the dice and hoping the prosecutor and Judge are in a good mood. This is not what our Constitution was written for.

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