Opinion
No. X02 CV 94 0155265 S
May 16, 2003
MEMORANDUM OF DECISION ON MOTION TO SET ASIDE VERDICT AND MOTION FOR A NEW TRIAL
On December 12, 2001, the jury in this case returned verdicts for the plaintiff, Elaine Blake, against the defendants, Lawrence M. Beck, M.D. and his medical group, Neurological Specialists, P.C., on both of her pending claims against them. On the plaintiff's claim for wrongful death, which she brought in her representative capacity as administratrix of the estate of her late husband, Crafton Blake, under General Statutes § 52-555, the jury awarded her $1,004,492.00 — $4,492.00 in economic damages for funeral expenses and $1 million in non-economic damages — based on findings that the defendants committed medical malpractice in their case and treatment of Mr. Blake, and thereby proximately caused his death. On the plaintiff's claim of loss of consortium, which she brought in her individual capacity as Mr. Blake's surviving spouse under General Statutes § 52-555a, the jury awarded her $2 million, all in non-economic damages, based on findings that by negligently causing Mr. Blake's death, the defendants wrongfully deprived her of his companionship, services and support throughout what would otherwise have been the remainder of their married life.
On January 18, 2002, the defendants moved this Court to set aside the above-described verdicts and for a new trial on all counts of the plaintiff's Complaint on five identical grounds.
I
The first ground upon which the defendants ask the Court to set aside the verdict and order a new trial is directed only to the plaintiff's claim for loss of consortium. On that claim, as on the defendants' Motion for Remittitur, the defendants argue that they are entitled to have the jury's $2 million verdict set aside and to be granted a new trial unless the plaintiff files a remittitur as ordered by the Court on the ground that the verdict is excessive as a matter of law. For all the reasons set forth in this Court's Memorandum of Decision On Motion For Remittitur dated May 9, 2003, the Court hereby grants this common aspect of the defendants' Motion To Set Aside The Verdict and Motion For A New Trial ("pending Motions") unless the plaintiff files a remittitur in the amount of $1 million on her loss-of-consortium claim on or before May 30, 2003.
II
The defendants' second claim on the pending Motions is that the Court erred by refusing to instruct the jury on their claim for apportionment against Bridgeport Hospital, a former defendant in this action with whom the plaintiff settled her claims before trial. The first basis for this claim is that the Court erred by concluding that the requested charge could not be given because the defendants had failed to establish a deviation from the standard of care by the Hospital's alleged agent, one Dr. Jamschidi, in interpreting the results of Mr. Blake's echocardiagram. In fact, claim the defendants, they did present evidence of such a deviation through the testimony of Dr. Richard Tajkowski, a board-certified cardiologist who has specialized in echocardiography and taken and interpreted echocardiograms as an independent contractor for Bridgeport Hospital since 1994. According to the defendants, Dr. Tajkowski supported their claim of malpractice against the Hospital by testifying that, upon personally reviewing the tapes of Mr. Blake's echocardiogram in 1994, approximately two years after they were made and interpreted on behalf of the Hospital by Dr. Jamschidi, he discovered that the tape, if interpreted correctly, would have shown a dangerously high pressure in Mr. Blake's right ventricle, instead of the high-normal pressure that Dr. Jamschidi reported. As one of Mr. Blake's treating cardiologists after he suffered his stroke, Dr. Tajkowski testified that had he had a correct interpretation of the echocardiogram at the time he rendered treatment to Mr. Blake in 1992, he would have had evidence that Mr. Blake was suffering from pulmonary hypertension, and thus would have advised the defendants, as Mr. Blake's attending physician (Dr. Beck) and treating neurologists (Dr. Beck and Dr. Barasch), to take immediate steps to deal with it. The defendants, for their part, made it clear in their testimony that they would have followed this advice from the cardiologists had they received it.
By this term, the Court is referring in this context to Dr. Beck and Dr. Barasch. Dr. Beck was sued individually, and his group, Neurological Specialists, P.C., was sued vicariously on the basis of such alleged malpractice. Dr. Barasch was not sued individually, but the plaintiff also made direct claims against Neurological Specialists, P.C. on the basis of his alleged malpractice.
The plaintiff has responded to this claim in several ways, one of which the Court finds persuasive. First, the plaintiff correctly notes that at no time in Dr. Tajkowski's testimony did he testify, or was he ever asked to testify, how echocardiograms were taken or interpreted in April 1992, much less what steps, procedures, or protocols for their taking and interpretation were then required under the prevailing standard of care. Hence, though Dr. Tajkowski clearly stated, based on his own later interpretation of the echocardiogram in 1994, that Dr. Jamschidi's 1992 interpretation was incorrect, he did not testify that the error resulted from any deviation by Dr. Jamschidi from the prevailing standard of care, much less explain why, in his expert opinion, it so deviated.
Connecticut law very clearly establishes that, "In a medical malpractice action, expert testimony is required to establish the standard of professional care to which the defendant is held." Stowe v. McHugh, 46 Conn. App. 391, 394, 639 A.2d 279 (1987) (citing Mather v. Griffin Hospital, 207 Conn. 125, 130-31, 540 A.2d 666 (1988)). "The medical expert must testify to the applicable standard of care and deviation from that standard." Id. (citing Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d 1064 (1990)).
The foregoing rule, applicable to proof of negligence against a malpractice defendant, applies with equal force to the defendant's own claim in defense of a malpractice action that the plaintiff's injuries and losses were proximately caused by the malpractice of another health care provider, including any former co-defendant in the action whom the plaintiff has released or with whom she has settled her separate but related claims. This extension of the rule to defendants' claims for apportionment was clearly stated by the Appellate Court in Baxter v. Cardiology Associates, 46 Conn. App. 377, 699 A.2d 271 (1997), where the defendant hospital had argued that, under General Statutes § 52-572h, it was entitled to have its jury automatically consider the possible negligence of any settled or released party simply because the plaintiff had originally sued that party for malpractice. "We do not[,]" said the Court,
. . . agree with the defendants that the statute requires that the jury automatically consider the issue of apportionment of the hospital's negligence. As with any issue, the trial court must not submit the issue of the settled party's negligence to the jury unless there is evidence to support it. See Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). Because this is a medical malpractice case, any evidence of the hospital's negligence would have to come from qualified medical experts. Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).
It would be improper for the judge to allow the jury to allocate fault without such evidence. If the plaintiff signals an intention to present evidence of fault solely against one defendant . . . it is incumbent upon the defendant to provide proof that more than one entity was at fault. The Hospital failed to present any evidence of the possible negligence of [the treating physicians]. Instead, the Hospital chose the legal theory that there was no negligence in this case . . . The Hospital cannot be heard to complain it was not afforded allocation.
On the same day as the Appellate Court issued its decision in Baxter, it released its above-quoted decision in Stowe v. McHugh, supra, 46 Conn. App. 391. The issue in Stowe, which was also a medical malpractice case, was whether the trial court had properly granted several apportionment defendants' motions for summary judgment on the ground that the defendant doctor had not disclosed a qualified expert witness to offer medical evidence concerning the standards of care applicable to them. Citing its own contemporaneous decision in Baxter as authority for the proposition that such testimony was indeed required to sustain a valid claim for apportionment, the Court affirmed the trial court as follows:
McHugh first claims that the trial court improperly ruled that expert testimony was required on the issue of the apportionment defendants' share of liability. We disagree.
It is well established that ordinarily "[i]n a medical malpractice action, expert testimony is required to establish the standard of professional care to which the defendant is held . . ." (Citation omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 130-31, 540 A.2d 666 (1988). The medical expert must testify to the applicable standard of care and deviation from that standard. Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d 1064 (1990).
This court recently addressed this issue in Baxter v. Cardiological Associates of New Haven, P.C., 46 Conn. App. (1997). In that case, this court held: "We do not, however, agree with the defendants that the statute requires that the jury automatically consider the issue of apportionment of the hospital's negligence. As with any issue, the trial court must not submit the issue of the settled person's negligence to the jury unless there is evidence to support it. See Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). Because this is a medical malpractice case, any evidence of the hospital's negligence would have to come from qualified medical experts. See Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).
. . .
We, therefore, do not agree with McHugh that expert testimony was not required on the issue of the apportionment defendants' share of liability. Since this is a medical malpractice action, the trial court was correct in not submitting the issue of the four apportionment defendants' negligence to the jury unless there was evidence from qualified medical experts.
Stowe v. McHugh, supra, 41 Conn. App. at 394-95.
Under Baxter and Stowe, there is no question that the defendants' right to have their jury instructed on their claim for apportionment with respect to the alleged negligence of Bridgeport Hospital, by and through Dr. Jamschidi, depended upon the presentation of testimony from a competent expert witness both to establish the prevailing standard of care for board-certified cardiologists in taking and interpreting echocardiograms in April 1992 and to prove that Dr. Jamschidi's allegedly erroneous interpretation of Mr. Blake's echocardiogram in that time frame constituted or resulted from a deviation from that standard of care. In the absence of such testimony, from Dr. Tajkowski or any expert witness, the defendants' apportionment claim failed as a matter of law, and thus the defendants were not entitled to have their jury instructed upon it.
On this aspect of the defendants' argument, the Court must also note that the plaintiff contests the defendants' right to have the jury instructed on their claim of apportionment for two other reasons. First, she claims that the defendants' evidence failed to establish that Dr. Jamschidi was in fact the agent of Bridgeport Hospital, because the only testimony on that subject was from Dr. Tajkowski, was stated that Dr. Jamschidi was paid for his work by the Hospital "as a contractor." Because an independent contractor is not an agent upon whose negligence the party who contracts with him can be predicted under the doctrine of respondent superior, the plaintiff claims that there is no basis in the record for sustaining the defendants' claim against the Hospital.
At trial, however, when considering this argument, the Court found that the record did indeed contain sufficient evidence of Dr. Jamschidi's status as an agent of the Hospital, based upon the plaintiff's own allegations of such agency in her earlier pleadings in this case, to warrant instructing the jury on that issue. The allegations of a party in a superseded pleading constitute evidentiary admission of the facts set forth therein. See, e.g., Crowell v. Danforth, 222 Conn. 150, 155, 609 A.2d 654 (1992) ("Upon the amendment of the original answer, the superseded pleading ceases to be a conclusive judicial admission and becomes . . . an evidentiary admission to be weighed and considered by the trial court along with the rest of the evidence"). The Court was thus persuaded, and remains persuaded, that such evidence furnished an adequate evidentiary basis for a finding of agency by the jury.
Second, the plaintiff claims that the record contains insufficient competent expert testimony to establish that Dr. Jamschidi's alleged negligence, even if the testimony of Dr. Tajkowski was sufficient to support it, proximately caused the death of Mr. Blake. At trial, the Court considered this claim at length but rejected it based on testimony from several expert witnesses, including the plaintiff's own experts. Without repeating its entire mid-trial ruling, which it adopts and relies upon here, the Court found sufficient evidence on the record to establish the causation element of medical malpractice, which was based upon the defendants' alleged failure to administer anticoagulants, particularly low-dose subcutaneous Heparin, to Mr. Blake or to place him in Venadyne Boots, to prevent clot formation in his immobilized leg. The Court therefore rejected, and still rejects, the plaintiff's alternative challenge to the defendants' request to charge the jury on their allocation claim against Bridgeport Hospital.
The second thrust of the defendants' challenge to this Court's refusal to instruct the jury as to the negligence of Bridgeport Hospital is that the rule of Baxter and Stowe, even if correctly applied by the Court, is unfair to defendants whose co-defendants settle with the plaintiff on the eve of trial. The gist of this argument seems to be that defendant health care providers sued for malpractice typically don't make claims of negligence against each other, and thus that they rely upon the plaintiff to establish the evidentiary basis for any valid claim for apportionment between them, to which they are statutorily entitled in a multi-defendant case under General Statutes § 52-572h. Therefore, when a plaintiff settles with a defendant on the eve of trial, defendants who have not named experts against their erstwhile co-defendants are caught up short, with too large a burden and too little time to meet that burden fairly.
It is, of course, clear that this Court must respect the defendants' argument because it is bound by the very cases whose clear rule the defendants seek to change. Even, however, if this Court had the power to change the rule of Baxter and Stowe it would not do so, and certainly not for the reasons advanced by the defendants.
The rule requiring malpractice defendants to prove their claims for apportionment against settled or released parties based upon competent expert testimony as to the standard of care for the settled or released parties and how they breached that standard of care is identical to that which requires such expert testimony to prove the plaintiff's malpractice claims against them. First, it is unfair and inappropriate to hold a health care provider responsible for negligence when his allegedly negligent conduct was conducted in accordance with the standard of care for his own medical specialty. Second, since the standard of care is not known to or knowable by the average juror without expert testimony from one familiar with that standard based upon study, training and/or experience in the field, such testimony is required to establish the standard of care and all claimed deviations therefrom to ensure that the jury's verdict is not based upon unfounded speculation. In short, just as this rule protects defendants facing unfounded claims of medical malpractice, it must protect plaintiffs whose fair, just and reasonable damages for proven malpractice are sought to be reduced by apportionment of damages based on unfound claims of malpractice against others.
For the foregoing reasons, the Court rejects the defendants' claims that the jury's verdict must be set aside and that a new trial must be ordered due to the Court's refusal to charge the jury on their claim for apportionment against Bridgeport Hospital, but it bases that ruling solely upon the defendants' failure to produce competent expert testimony as to the prevailing standard of care applicable to Dr. Jamschidi, and through him to the Hospital.
III
The defendants' third claim on their pending Motions is that the Court erred by refusing to allow them to introduce a 1997 article from The Lancet, a medical journal, regarding the International Stroke Trials. The article described an extended clinical study of stroke patients that was conducted, at least in part, after 1992, the year in which the defendants allegedly committed malpractice upon, and thereby caused the death of, Mr. Blake by failing to administer low dose subcutaneous Heparin to him when he had an immobilized leg. The plaintiff attempted to prove at trial that in 1992, board-certified neurologists were required by the standard of care to administer low-dose subcutaneous Heparin to prevent the formation of blood clots in their stroke patients who had immobilized limbs. In the clinical trials discussed in The Lancet article, however, where a large number of stroke patients were followed to determine if there was an increased risk of intracranial bleeding in those to whom low-dose subcutaneous Heparin was given, a sizeable number of patients were given no Heparin. According to the defendants, the failure to administer subcutaneous Heparin to large numbers of stroke patients in a controlled clinical trial conducted during and after 1992 clearly indicated that that form of therapy was not required under the standard of care. Accordingly, they sought to admit the article to confirm their own experts' testimony that the defendants had not deviated from the standard of care by not administering low-dose subcutaneous Heparin to Mr. Blake after he suffered his stroke.
Apart from correctly noting that the protocols observed in the clinical trial discussed in the subject article were not relevant to their claims because the stroke patients studied in the trial did not all have immobilized limbs, the plaintiff has made several persuasive arguments as to why the article was properly excluded.
First, she notes that no foundation was ever laid to admit the article in support of the testimony of either of the defendant's medical experts, Dr. Lawrence Brass or Dr. Thomas Byrne. Under Section 8-3 (8) of the Connecticut Code of Evidence, statements contained in learned treatises are admissible as an exception to the hearsay rule if and to the extent that they meet the following requirements: (1) they have been called to an expert witness' attention on cross-examination or relied upon by an expert witness in direct examination; and (2) the treatise or other publication in which the statement appears is recognized as a standard authority in the field by the witness, by another expert witness or by judicial notice.
To the extent called to the attention of an expert witness on cross-examination or relied on by the expert witness in direct examination, a statement contained in a published _____, periodical or pamphlet on a subject of history, medicine, or other _____ or art, recognized as a standard authority in the field by the witness, other expert witness or judicial notice.
These requirements were not as to Dr. Brass because the subject article was not brought to his attention on cross-examination and was not relied upon by him on a basis for his own expert testimony. His non-reliance upon the article was made clear initially at his deposition, where, when asked if he was basing his expert opinions on any medical literature, he stated that he was not. He later confirmed such non-reliance at trial.
Dr. Byrne, for his part, initially raised the article in a nonresponsive answer to a question, which the Court ordered stricken after declining plaintiff's broader request that his entire testimony be stricken for intentional misconduct. On a voir dire of the witness concerning the trial, moreover, he confirmed that the article did not in fact support his expert opinion that the administration of subcutaneous Heparin to stroke patients increased the risk of intracranial bleeding. In fact, he conceded, the article tended to show the opposite — that no such increased risk was associated with the administration of subcutaneous Heparin. In light of that answer, the witness testified before the jury, by agreement of the parties, that he was aware of no medical literature that tended to confirm his opinion.
In addition to the foregoing, neither witness testified that the subject article is generally accepted as authoritative in the field of neurology. For that reason and those previously specified, the treatise was properly ruled inadmissible under Connecticut Code of Evidence § 8-3 (8).
A final basis for the Court's exclusion of the article, through or in relation to the testimony of Dr. Brass, was his failure to bring it to his deposition in response to a subpoena and his express disavowal during the deposition of any reliance upon medical literature. This conduct deprived the plaintiff of fair notice that the defense might rely upon the article to support Dr. Brass's trial testimony in any way. The article was thus excludible for the alternative reason that its nondisclosure unfairly prejudiced the plaintiff in the preparation of her case.
Against this background, the Court remains convinced, as it was at trial, that the subject article was inadmissible. The Court thus rejects the defendants' third claim of error on their pending Motions.
IV
The defendants' fourth claim of error on their pending Motions is that there was no basis in the trial record for the Court's instruction of the jury on the plaintiff's alternative theory that they deviated from the standard of care by failing to place Mr. Blake, as a stroke patient with an immobilized leg, in Venadyne boots. Reduced to its essence, this argument is based on the asserted lack of any evidence in the trial record that Venadyne boots were available for use at Bridgeport Hospital when Mr. Blake was being treated there by the defendants just after his stroke. If such boots were not available, they argue, the defendants cannot be found negligent for having failed to use them in their care of Mr. Blake.
In fact, however, as the plaintiffs rightly argue, the evidentiary basis for such a finding came directly from the defendant Dr. Beck. Dr. Beck testified that he actually considered using Venadyne boots in his post-stroke care of Mr. Blake, and explained that he did so because they are an "effective" treatment modality to prevent the formation and migration of blood clots. He further stated that he did not use them because "we felt they were contraindicated," not because they were not used at Bridgeport Hospital or otherwise unavailable.
From the foregoing testimony, the Court concludes, as it did at trial, that there was an adequate evidentiary basis in the record for the jury to find that Venadyne boots were available to Dr. Beck, and thus that his failure to use them constituted medical malpractice, as the plaintiff's expert testimony tended to show. The Court thus rejects the defendants' fourth claim on these Motions.
V
The defendants' fifth and final claim on their pending Motions is that the Court erred by refusing to permit Dr. Philip Barasch, a board-certified neurologist employed by Neurological Specialists, P.C. upon whose negligence in treating Mr. Blake the jurors based their direct verdict and 50% of their award of damages against defendant Neurological Specialists, P.C., to testify as to the cause of Mr. Blake's death. In support of this claim, the defendants argue that the witness should have been permitted to ask that question on recross examination after he was questioned by the plaintiff as follows on redirect:
Q. Now, Doctor, whereever this — by the way, today, Tuesday, you are conceding that Mr. Blake died of pulmonary embolism, aren't you?
A. No, I'm not.
Q. Oh, I thought I understood that when you were answering Mr. Williams' question. That wasn't your testimony?
A. This is correct. I'm not —
. . .
Q. Doctor, if you understood in 1992 that subcutaneous Heparin was safe, and you administered it to Mr. Blake, if you had understood that it would not worsen his stroke, and you had administered subcutaneous Heparin to Mr. Blake in 1992, he'd be alive today, true?
A. Not true.
(Transcript ("T.") 12/4/01, A.M. Session, pp. 32, 49.)
In light of this testimony, which the defendants claim to have been an attempt by Dr. Barasch to offer opinions as to the cause of Mr. Blake's death, the defendants assert that they should have been permitted to question Dr. Barasch about the cause of Mr. Blake's death.
When this issue arose at trial, the Court addressed it at great length outside the presence of the jury. (T. 12/4/01, AM Session, pp. 51-65.) In the course of its colloquy with counsel, the Court found that the plaintiff had opened the door to inquiry by the defendants as to why Dr. Barasch did not believe, or could not say with reasonable medical probability, that Mr. Blake would be alive today if he had administered subcutaneous Heparin to him in 1992. This inquiry, however, was limited to exploring why the witness could not say that subcutaneous Heparin would have made a difference in Mr. Blake's medical course, not the different question of what factor or factors actually caused his death. Indeed, in answering the very question put to him by defense counsel outside the presence of the jury, Dr. Barasch gave a lengthy answer which made it clear that he could not say because he did not know:
THE COURT: Well, what I'd like to know from the witness, and by way of preliminary question here is this. Why is it that you do not believe that Mr. Blake would still be alive today? What's your specific answer to Mr. Ziotas' question, the one that he put? you said your answer was no, you did not. Why is that?
THE WITNESS: That he wouldn't be alive today if he were given subcutaneous Heparin?
THE COURT: Even if you had given subcutaneous Heparin in 1992 when you were treating him.
THE WITNESS: Because it's questionable that that pulmonary embolus — well there's lots of reasons. That's why I was trying to backtrack my train of thought here.
One, it's questionable if that pulmonary embolus was the cause of death. The reason is that it's a branch embolus. It's not a it's a peripheral embolus. It goes to a piece of the lung. It doesn't block the main pulmonary artery which is the usual cause of death in pulmonary emboli.
The second reason would be the Holter monitor he did have on at the time he was — that terminal day shows that at least 20 some odd minutes before he became symptomatic he started having an arrhythmia. Now, he has an arrhythmia before he starts complaining of shortness of breath. That's not the usual scenario in a pulmonary embolus where everything happens abruptly. You get shortness of breath, then you get the arrhythmia, then you get the terminal event. This was not the case. It was in reverse.
And the third reason is that he already had multiple pulmonary emboli which means that he has a source somewhere for throwing clots, somewhere there's a source for throwing clots. Now, once there's a source for throwing clots, subcutaneous Heparin doesn't treat that. You don't stop clots from being thrown once there's already a source of throwing clots.
So there's three good reasons that I have.
(T. 12/4/01, pp. 54-55.)
Upon hearing this response, the Court ruled that defense counsel could elicit it from the witness before the jury to explain his answer to plaintiff's counsel's question. (T. 12/4/01, p. 55.)
Defense counsel explained, however, that he wanted the witness to go further and state his own affirmative opinion as to the cause of Mr. Blake's death despite the witness's evident uncertainty on that subject, as voiced in the above-quoted answer. To this proposal, which never went so far as to state or to elicit from the witness what he would say in response to such an inquiry, plaintiff's counsel objected on several bases. First, he correctly noted that the witness had never been disclosed as an expert on causation. Second, he noted that the witness disclaimed any opinion on that subject in his sworn deposition testimony, and thus could not be heard on that issue during trial without violating the plaintiff's rights to full and fair disclosure under relevant expert disclosure provision of the Practice Book. Indeed, the witness's deposition testimony included statements that he had no idea what caused Mr. Blake's death and that he was unfamiliar with literature on that subject. (T. 12/4/01, pp. 56-57.) Hence, claimed the plaintiff, the witness's proffered testimony was undisclosed and had no proper foundation upon which to establish the witness's competence to give it. (T. 12/4/01, pp. 58-59.) The Court sustained the plaintiff's objections, having received no counterargument from the defense that an opinion on causation had previously been disclosed or that the witness was competent to render such an opinion at the time of trial. It therefore ruled that, although the Doctor could explain his answer to plaintiff's counsel's question about subcutaneous Heparin, he could not go further to offer an undisclosed, unfounded opinion as to Mr. Blake's cause of death:
THE COURT: . . . I have no problem with the Doctor saying what he just said. I don't have a problem with it because I think that does meet the testimony. But to go the extra step to the affirmative question of [,] to offer the opinion on what was, in fact, the cause of death when that is beyond the scope of the disclosure, it seems to be inappropriate.
(T. 12/4/01, p. 61.)
The Court remains satisfied that its ruling at trial comported fully with the law. The Court gave the defendants wide latitude to have the witness explain his answer on redirect examination which was claimed to have opened the door to opinion testimony on causation. It did not, however, permit him to testify to any ultimate opinion as to the cause of the decedent's death when the record contained no foundation for such an opinion by him, failed to disclose that he actually had such an opinion to reasonable medical probability and clearly suggested that he did not, and finally that any such opinion had never been disclosed to the plaintiff at any time despite inquiry on the subject at deposition and the defendants' continuing duty to disclose. In short, the Court believes and finds that it did not err by refusing to permit Dr. Barasch to offer unfounded, undisclosed expert testimony as to the cause of Mr. Blake's death.
CONCLUSION
For all of the above-stated reasons, in addition to those reasons stated in the Court's ruling on the parties' conflicting claims at trial and in the Court's Memorandum of Decision On Motion For Remittitur dated May 9, 2003, the defendants' pending Motions are hereby:
GRANTED, with respect to the plaintiff's individual claim of loss of consortium only, on the basis of the defendants' first claim of error, IF the plaintiff fails to file a remittitur in the amount of $1 million as to that claim on or before May 30, 2003;
DENIED with respect to the plaintiff's individual claim of loss of consortium on all of the defendants' other claims; and
DENIED IN ITS ENTIRETY, with respect to the plaintiff's representative claim of wrongful death by medical malpractice, on all of the defendants' claims.
IT IS SO ORDERED this 16th day of May 2003.
Michael R. Sheldon, J.