Vermont Upholds Sanctions Resulting in Dismissal for Plaintiff’s Refusal to Respond to Interrogatories on Expert Testimony and Describing Negligent Act

A woman underwent weight-loss surgery, and the surgical incision became infected. The surgeon inspected the infected incision. The rehabilitation center where she received post-surgical care determined that the patient had contracted a Methicillin-resistant Staphylococcus Aureus (MRSA) infection at the incision site. Five months later the woman died of sepsis caused by the MRSA infection spreading to her heart valves. Her survivor sued the surgeon and clinic where the surgery took place for negligence in failing to treat the infection.


During discovery, the defendants sent the plaintiff a series of interrogatories. One requested the “identity of experts to be employed at trial of this matter, the subject of their testimony, their opinions and the substance of the facts, which are grounds therefore.” Another asked the plaintiff to state the alleged negligent acts or omissions committed by the defendant specified by date and time, how the act impacted patient, and what the proper course of care should have been.


In response to the court’s discovery order the plaintiff disclosed that the woman’s primary care physician would testify concerning defendants’ failure to treat the infection and that the failure was a breach of the standard of care that resulted in the woman’s death. The defendants filed a motion to compel the plaintiff to respond to the interrogatories. In response, the plaintiff responded to other interrogatories but did not identify an expert or respond to the interrogatory asking for a description of the negligent acts or omissions.


After multiple hearings and motions to compel, the plaintiff filed a supplemental disclosure, which stated that the primary care physician’s opinion was that defendants’ refusal to treat the woman’s infection caused her to develop sepsis which led to her death. And, that failure to aggressively treat or to allow the primary care physician to treat the infection with antibiotics was a breach of the standard of care. The defendants filed a motion to dismiss or for sanctions for the plaintiff's continued refusal to comply with the court's discovery orders.


The Superior Court, Rutland Unit, Civil Division, sanctioned the plaintiff for his noncompliance by precluding him from using any evidence at trial that was requested in the two interrogatories at issue. Unable to submit expert evidence or evidence of defendants’ negligence, the plaintiff conceded that he could not oppose a motion for summary judgment. The court granted judgment in defendants’ favor.


The Supreme Court of Vermont affirmed the trial court holding the court did not abuse its discretion in concluding that the plaintiff had failed to comply with defendants' discovery request regarding the plaintiff’s expert testimony. The plaintiff failed to provide the substance of the facts and opinions as to which the expert is expected to testify, as required by Vermont’s Rule of Civil Procedure 26. The purpose of Rule 26 is to allow defendants to garner enough information to make a choice about whether and how to take a deposition, but the rule does not assume that a deposition will be taken.


Moreover, the plaintiff’s failure to comply with the defendants’ discovery request regarding specifically identifying the defendants’ alleged negligent acts significantly hampered the defendants in making litigation decisions. The answers to these questions were relevant to supplying the defendants with sufficient notice of the theories under which the plaintiff planned to proceed. The case presented a far more complex series of facts than plaintiff's expert disclosure suggested and accordingly more detailed disclosures were properly required. The court concluded it was not error for the trial court to find that these facts were a necessary part of the substance of the facts and opinions as to which the expert is expected to testify, as required by Rule 26.


Finally, the court held that given the plaintiff's failure to comply with the court's several orders to answer the interrogatories and to supplement the expert disclosure and the length of time that had passed, it was also within the court's discretion to sanction the plaintiff for failing to comply. Although a sanction may have a similar effect to a dismissal, when there is no outright dismissal or default, no findings of fact to show bad faith or deliberate and willful disregard of the court's orders, as well as prejudice to the opposing party are required. The court reasoned that because the sanction precluded the plaintiff from offering certain evidence, but was not a dismissal, no special findings were required.


See: Stella ex rel. Estate of Stella v. Spaulding, 2013 WL 379157, 2013 VT 8 (Vt., February 01, 2013) (not designated for publication).


See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?