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French v. Levitt

July 8, 2010


Appeal from the Superior Court of the District of Columbia (CAM6639-06) (Hon. Natalia Combs Greene, Trial Judge).

The opinion of the court was delivered by: Belson, Senior Judge

Argued April 29, 2010

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and BELSON, Senior Judge.

Appellant Candace French sued appellees Dr. Louis Levitt, M.D., Orthopedic Medicine & Surgery/Drs. Levitt, Danziger and Scheer, Dr. Paul Ruff, M.D., and Metropolitan Institute for Plastic Surgery, PLLC, for damages in Superior Court, alleging that the appellees had failed to diagnose a bone infection in her left foot following an ankle fusion performed in May 2004 by Dr. Levitt. Appellant alleged that the failure of the appellees to diagnose her condition required her to receive a below-the-knee amputation in January 2005. Shortly before the trial date, appellant acknowledged that she would be unable to meet her burden of proof because she did not have a medical expert. The court then granted appellees' motion to dismiss. Appellant brings this appeal from the order granting dismissal. We affirm.


In May 2007, appellant identified Dr. Sheldon Stein, M.D., and Dr. Elliot Heller, M.D., as her expert witnesses, and later represented that both experts would testify that both Dr. Levitt and Dr. Ruff had breached the standard of care and proximately caused appellant's injuries. The parties agreed in March 2008 to a trial date of January 26, 2009. Approximately five weeks before trial, on December 17, 2008, appellant filed an "Emergency Motion to Allow for Additional Limited Discovery" in which she asked the court to allow appellant to designate an expert to replace Dr. Stein because he would "not be able to fulfill his duties as Plaintiff's expert." Counsel for appellant stated that Dr. Stein's privileges at the hospital in Guam, where he had recently re-located, "may have . . . been suspended," that Dr. Stein had moved to Israel, and "that he may not be available to appear" at trial. In addition, appellant's counsel stated, "it appears that the U.S. Department of Justice recently filed a civil action against Dr. Stein alleging fraud and/or tax evasion."

Initially, the motion was denied because of a procedural defect, but was refiled on January 7, 2008. At a scheduled pretrial conference on January 8, 2009, the court denied appellant's emergency motion. At this conference, appellant also withdrew Dr. Heller, her other expert medical witness. During a conference call that occurred four days later, counsel for appellant conceded that "we are unable to meet our burden of proof because we don't have an expert to go forward on the case." The court then granted the defendants' motion to dismiss. Appellant brought this timely appeal.


Appellant argues that the trial court abused its discretion by denying what she styled as her motion for "additional limited discovery," which was in substance a motion to designate a new expert and for a continuance, and also erred by subsequently granting appellees' motion to dismiss. Appellant contends that the court did not properly apply the factors set forth by this court in Weiner v. Kneller, 557 A.2d 1306, 1311-12 (D.C. 1989), that must be considered when the designation of additional expert testimony is requested, and that the court erred in denying her motion, as it was based on good cause and excusable neglect.*fn1

"When determining the propriety of a decision on a discovery motion the standard of review is deferential, and in the absence of a showing of abuse of discretion or legal error, it is this court's duty to sustain the motions judge's disposition." Dada v. Children's Nat'l Med. Ctr., 763 A.2d 1113, 1115 (D.C. 2000) [Dada II] (internal quotation marks and citations omitted).

We preface our analysis of the trial court's consideration of the Weiner factors with the observation that after Weiner was decided, this court took note of changes in Superior Court civil rules that were adopted to reduce delay in civil trials that were prejudicial not only to the opposing party, but also to the administration of justice. See Abell v. Wang, 697 A.2d 796, 800 (D.C. 1997). We later observed in Dada v. Children's Nat'l Med. Ctr., 715 A.2d 904, 910 (D.C. 1998) [Dada I], quoting Abell, supra, 697 A.2d at 802, that "although 'the trial court still must consider the "totality of the circumstances" of each case,' the more rigorous and formal track on which civil cases are now placed allows 'the trial court [to] accord greater weight than previously allowed for prejudice caused by delay to the overall administration of justice.'"

The record reflects that the court undertook an in-depth and reasoned analysis of the Weiner factors. Before analyzing the five Weiner factors and ruling on appellant's motion, the court listed the factors, referring explicitly to the first three, and more generally to the last two. The trial court proceeded to weigh the prejudice to both parties, emphasizing the fact that appellant had known since October 2008 that there were problems with Dr. Stein, that the defendants had incurred expenses related to this specific expert and would have to incur additional expenses if the trial were to be delayed, that appellant was entitled to her day in court, that Drs. Levitt and Ruff had a right to get to trial expeditiously, and that appellant's motion came only a few weeks before the long-scheduled trial date.

The record reflects that Drs. Levitt and Ruff had already deposed Dr. Stein and had conducted a de bene esse deposition of a defense expert, Dr. George Cierny, M.D., who specifically rebutted Dr. Stein's theories of liability and opinions. In light of this trial preparation by appellees and the appellant's inability to proffer a new expert to the court approximately five weeks before trial, granting appellant's motion would have required the appellees to depose again their own witness or witnesses, would have required both appellee 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. See Young v. Interstate Hotels & Resorts, 906 A.2d 857, 862-64 (D.C. 2006) (argument that prejudice to opposing party could be cured by allowing additional time for deposition of "an as yet unnamed expert witness" rejected where motion to amend pretrial order was filed three months prior to trial). Thus, as the trial court concluded, Drs. Levitt and Ruff would suffer considerable prejudice if the court were to grant the appellant's motion.

The trial court then considered "the reasonableness of the party's explanation for failing to meet the deadline, as well as any pattern of noncompliance." Dada I, supra, 715 A.2d at 910. The court was not convinced by appellant's explanation that Dr. Stein had suddenly become unresponsive and unreliable, since counsel had been apprised of issues relating to Dr. Stein months before she filed her motion with the court.*fn2 In addition, the court noted that Dr. Stein had testified at his deposition that he does not testify at trials, but rather prefers to give trial testimony by de bene esse deposition. The record makes clear that appellant had ample notice to retain a suitable expert in a ...

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