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Smith v. Central Vermont Hospital11/9/2004
Civ.P. 26(e), court should consider the importance of the testimony to the case, the prejudice to the party inconvenienced, the ability of the other party to formulate a response, and the willfulness of the violation).
12. Applying these criteria here, we note that defendants were well aware of the theory of liability set forth in Dr. Sumner's affidavit, the theory having been previously stated in plaintiff's expert disclosure form and in Dr. Sumner's deposition. Indeed, it is important to recall that the trial court explicitly found that Dr. Sumner had stated several theories of liability during his initial deposition, one being-in the trial court's words-that Dr. Goldberg should have intubated Sean "then and there" and that "he deviated from the standard of care by failing to do it." Accordingly, even if we agreed with the court's finding that Dr. Sumner's subsequent responses implied that he had "abandoned" this theory, there is no question that defendants were fully informed of, and amply prepared to counter, Dr. Sumner's initial theory of causation. Any doubts in this regard are removed by defendants' rapid and ultimately successful response to Dr. Sumner's subsequently filed affidavit.
13. We have repeatedly observed that the purpose of liberal discovery rules is "the prevention of surprise to one's opponents," and have not hesitated to affirm the ultimate discovery sanction of exclusion when to do otherwise would frustrate this objective. White Current Corp. v. Vt. Elec. Coop., 158 Vt. 216, 223, 609 A.2d 222, 226 (1992) (affirming exclusion of experts' testimony where their identities were not disclosed in supplemental answers until three and six days prior to trial); see also Greene, 171 Vt. at 283-84, 762 A.2d at 869 (affirming court's exclusion of expert testimony not disclosed prior to trial during expert's deposition). Here, by way of contrast, the record reveals no prejudice or unfair surprise to defendants through the theory set forth in Dr. Sumner's affidavit.
14. Furthermore, as noted, defendants submitted three supplemental affidavits by their own experts that directly rebutted Dr. Sumner's affidavit. Accordingly, there is no basis to conclude that defendants were unable to effectively respond to the new affidavit. Additionally, the trial court was fully empowered to require that Dr. Sumner submit to additional discovery, at plaintiff's expense if the court deemed fit, to "cure" any possible prejudice to defendants. Nothing in the record suggests that the additional time entailed would have disrupted any trial schedule, nor is there any record evidence of bad faith or of a willful nondisclosure on plaintiff's part.
15. While we recognize fully the importance of affording the trial courts ample leeway to control their dockets through management of the discovery process, we also believe that courts must consider the actual consequences that may arise from perceived discovery violations and consider less drastic responses to the exclusion sanction in the absence of any bad faith, prejudice to the parties, or unwarranted delay in the trial process. See Outley, 837 F.2d at 591 (court should consider "actual difficulties" that discovery violation causes and consider "less drastic responses"). Here, we discern no sound or reasonable basis, under any of the recognized criteria, for the court's decision to strike the affidavit. We thus conclude that the court erred in excluding Dr. Sumner's affidavit as a sanction for the purported violation of V.R.C.P. 26(e). Because the court's decision to grant summary judgment was premised solely on its conclusion that, absent the affidavit, plaintiff had failed to state a viable theory of liability, we conclude that t
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