May 1, 2022

The Commonwealth of Massachusetts Appeals Court (“Massachusetts Appellate Court”) ruled in an unpublished Opinion and Memorandum dated January 25, 2022 in a Massachusetts medical malpractice case in which the plaintiff alleged harm due to the improper placement of hardware in the patient’s spine, “We conclude that the trial judge did not abuse his discretion in ruling to admit the defense experts’ testimony. The disclosures as to both experts sufficiently put the plaintiff on notice as to the substance of their opinions that the hardware was properly placed by the defendant, and moved some time later … The qualifier that one expert would testify “generally” about migration and movement of hardware certainly did not render the disclosure insufficient … As for the disclosure that the other expert would testify that “while there is no evidence in this case, . . . [hardware] can later become extruded,” it was within the judge’s sound discretion to rule that it sufficiently disclosed the opinion that the hardware did move.”

Before trial, the plaintiff disclosed that her expert would opine, based on magnetic resonance imaging (MRI) images taken in August 2010 and on a computerized tomography (CT) scan taken in December 2011, that the hardware placed by the defendant during the May 2010 surgery was “malposition[ed].” The defendant disclosed that his experts would opine that at the time of the surgery, the hardware was appropriately positioned, as shown by images taken on May 3 and May 5, 2010. The defendant disclosed that one defense expert would “testify generally regarding migration and movement of interbody hardware,” and the other would “explain that while there is no evidence in this case, devices placed in the interspace in an appropriate manner, can later become extruded from the interspace.”

At trial both defense experts testified, over objection, that the hardware was positioned correctly at the time of surgery and later moved. After the jury returned a defense verdict, the plaintiff moved for a new trial, again arguing that the defendant had not timely disclosed his experts’ opinions that the hardware moved after surgery, and that as a result the plaintiff was “ambushed” at trial. After a hearing, the trial judge denied the motion. The plaintiff appealed.

The Massachusetts Appellate Court stated: “The Massachusetts Rules of Civil Procedure require the parties to disclose the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Mass. R. Civ. P. 26 (b) (4) (A) (i) … [however] [e]ven undisclosed expert testimony may be admissible and not prejudicial if it “serve[s] as a permissible explanation for, and development of, the expert’s disclosed opinion.””

Chace v. Stern, 20-P-1351.

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