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Trial Court’s Refusal to Allow Plaintiff To Name Substitute Expert Affirmed by D.C. Court of Appeals
In French v. Levitt, No. 09-CV-94 (D.C. July 8, 2010), the D.C. Court of Appeals affirmed the trial court's denial of plaintiff's motion to designate a new liability expert and for a continuance. However, this result was based on an unusual combination of factors that is unlikely to recur often.
The plaintiff had sued the defendant physicians for failure to diagnose a bone infection on her left foot following an ankle fusion. The plaintiff alleged that the failure to make this diagnosis resulted in a below-the-knee amputation in January, 2005. In her medical malpractice action, the plaintiff identified a medical expert early in the case, but about five weeks before trial, the plaintiff filed an emergency motion to allow for additional limited discovery, in which she asked the trial court to allow her to designate a replacement expert.
The plaintiff's expert had relocated, first to Guam, then to Israel, and had legal problems. Plaintiff's motion was initially denied due to a procedural defect, but then was refiled the day before the pretrial conference. At the pretrial conference, the trial court denied the motion. Subsequently, plaintiff's counsel conceded that his client was unable to meet her burden of proof with a liability expert, and based on that, the trial court dismissed the case.
On appeal, the issue was whether the trial court abused its discretion by denying the motion to, in effect, designate a new expert and for a continuance. The Court of Appeals affirmed the trial court's discretionary decision, and considered the following factors.
The trial court had weighed the five factors required by D.C. precedent. The Court of Appeals also noted that the defendants had already deposed the plaintiff's expert, and had done a de bene esse deposition of their own expert. The plaintiff was unable to proffer a new expert five weeks before trial, much less make a proffer of the opinions of the substitute expert. Therefore, granting the motion would have required the defendants to depose again their own experts, would have required the defendant physicians to schedule additional time and expense for a delayed trial, and would potentially subject them to different allegations of negligence at a late stage of the litigation. Further, the plaintiff had known of issues relating to her expert for months before she filed the motions before the trial court. If the trial court were to grant a continuance, and allow the plaintiff to find a new expert, the case probably would have gone on for almost another year.
Posted by David B. Stratton on 08/30/2010 at 02:02 PM
District of Columbia •
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