Solimeno v. Yonan (CA1 3/18/10)

If you have read this then here is the other side of the coin: why was it published?

This was a medical malpractice case. Both sides played disclosure close to the vest. At trial, Defendant used that against Plaintiff, objecting several times to undisclosed evidence. Then came Defendant’s turn; his testimony basically blew Plaintiff’s case out of the water. So, Plaintiff objected that his opinions hadn’t been disclosed. The trial court agreed, declared a mistrial, and awarded Plaintiff substantial fees.

On appeal, the majority explains why it agrees that Defendant hadn’t made proper disclosure and why the sanction was appropriate. The dissent, after a couple of pages of thoroughly commonplace observations (except the part about how disclosure is unfair to the poor, put-upon trial judges) about the disclosure rules, points out that Plaintiff’s counsel took Defendant’s deposition and chose not to ask about matters clearly at issue but agrees that there was one point about which Defendant should have made disclosure anyway. The dissent wouldn’t have declared a mistrial for this but Defendant hadn’t appealed that issue so the sanctions should be affirmed.

And what does one learn from reading the details? A few things about pulmonary embolism – but hardly enough to make much of a dent toward your M.D. degree. That discovery and trial were probably uncomfortable, unfriendly, and combative – but reading some of the names of counsel could have told you that. That disclosing that your defendant doctor will testify, “consistent” with his records, that he “complied with the applicable standard of care” can be dangerous – but if you don’t know that then what in the world are you doing handling professional-liability cases?

Apparently, the court feels that its contribution to the law is to say that the doctor-defendant is held to the same disclosure standard as an expert witness. If that’s a surprise, please see the last question above. It may be that too many have forgotten – or never knew about – the days when we had to fight about whether the doctor could even give opinion testimony on his own behalf.

These thirty pages say nothing, and teach nothing, to anyone outside this case.