William Cheney & a. v. Peter Mertins

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0324, William Cheney & a. v. Peter
Mertins, the court on November 26, 2019, issued the following
order:

Having considered the plaintiffs’ brief, the defendant’s memorandum of
law, and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The plaintiffs, William Cheney
and Danielle Cheney, appeal a jury verdict, following a trial in Superior Court
(Smukler, J.), in favor of the defendant, Peter Mertins. On appeal, they
challenge pretrial rulings of the Trial Court (Colburn, J.) granting the
defendant’s motion to exclude undisclosed expert testimony, and denying their
motions to extend the discovery deadlines and continue trial. We affirm.

“We have long recognized that justice is best served by a system that
reduces surprise at trial by giving both parties the maximum amount of
information.” Figlioli v. R.J. Moreau Cos., 151 N.H. 618, 626 (2005). Thus, a
party is generally entitled to disclosure of an opposing party’s expert witnesses,
the substance of the facts and opinions about which the experts are expected
to testify, and the basis for their opinions. Id. Failure to provide such
information in accordance with a court-ordered discovery schedule should,
ordinarily, result in the exclusion of expert opinion testimony at trial absent a
showing of good cause. Id.; Super. Ct. R. 1(d).

Pursuant to RSA 516:29-b (Supp. 2018), parties to civil cases are
required to “disclose to other parties the identity of any person who may be
used at trial to present evidence under Rules 702, 703, or 705 of the New
Hampshire rules of evidence.” RSA 516:29-b, I (emphasis added); see also
Wong v. Ekberg, 148 N.H. 369, 372 (2002) (stating that the expert disclosure
policy “applies even when a known factual witness acts as an expert”). If a
disclosed witness was retained or specifically employed to provide expert
testimony, or if the witness’s “duties as an employee of the party regularly
involve giving expert testimony,” the statute requires the disclosing party to
provide a written report containing additional information. RSA 516:29-b, II.

The trial court has broad discretion over the management of discovery
and the admissibility of evidence at trial. Laramie v. Stone, 160 N.H. 419, 425
(2010); Figlioli, 151 N.H. at 626. We review the trial court’s decisions on such
matters pursuant to the unsustainable exercise of discretion standard. Figlioli,
151 N.H. at 626. To satisfy this standard, the plaintiffs must demonstrate that
the trial court’s rulings were clearly untenable or unreasonable to the prejudice
of their case. Id.

The plaintiffs filed suit in 2017 seeking damages arising out of a
December 13, 2014 automobile collision with the defendant. The damages they
sought included compensation for pain that Danielle Cheney claimed to have
suffered in her neck and back, and medical expenses incurred to diagnose and
treat such pain. Shortly before the collision, Danielle Cheney had sought
treatment for similar symptoms. By agreement, the plaintiffs’ initial expert
disclosure deadline of June 15, 2018, was extended by thirty days.

On July 27, 2018, counsel for the defendant wrote to the plaintiffs’
counsel, stating that the plaintiffs had not disclosed an expert, and that absent
an expert disclosure, the defendant was unable to determine whether to
request an independent medical examination prior his own expert disclosure
deadline of August 15, 2018. The defendant requested that the plaintiffs
advise whether they intended to call any expert witness, and if so, whether they
planned to file a motion to extend the expert disclosure deadlines. The
plaintiffs did not respond to the defendant’s correspondence.

On September 24, 2018, counsel for the defendant again wrote to the
plaintiffs’ counsel, observing that the plaintiffs had still not provided an expert
disclosure, and that the defendant had “no information regarding which, if any,
doctor [would] be causally relating [Danielle Cheney’s] extensive complaints
and ongoing issues to the accident.” Defense counsel asserted that, absent an
expert disclosure from the plaintiffs, the defendant was “unable to ascertain
whether a defense expert [would be] needed.” Defense counsel advised that, if
the parties were unable to resolve the matter at an upcoming mediation, the
defendant intended to file a motion addressing the lack of an expert disclosure.

The defendant moved to exclude undisclosed expert testimony on
November 6, 2018. The defendant noted that, although the plaintiffs were
claiming that Danielle Cheney suffered from “ongoing unresolved neck and
back pain, as well as new symptoms of headaches,” and were seeking more
than $28,000 in medical bills, no medical expert had been disclosed, and none
of Danielle Cheney’s medical providers had established a causal connection
between her symptoms and the December 13, 2014 collision. The defendant
further asserted that, to the extent that the plaintiffs intended to call Danielle
Cheney’s treating physicians, they had not provided a witness list complying
with Superior Court Rule 22. See Super. Ct. R. 22(a)(1) (generally requiring
parties to disclose, without awaiting a discovery request, the identity of
witnesses likely to have discoverable information that the disclosing party
might use to support claims or defenses, and a summary of the information
believed to be possessed by each disclosed witness). The defendant argued
that, absent a disclosure complying with RSA 516:29-b, the testimony of the

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physicians should be limited to “fact witness” testimony, and requested that
the trial court exclude any “testimony by treating doctors beyond factual
information contained in the treating doctor’s own medical records at trial.”

The plaintiffs objected, asserting that no expert witness “ha[d] been
retained in this matter,” that they intended to call Danielle Cheney’s treating
physicians to testify concerning her post-collision medical treatment, and that
the physicians would testify “only as to matters and opinions gathered from or
generated by actual treatment of Ms. Cheney.” The plaintiffs argued that such
testimony was “not subject to [the] mandatory disclosure and reporting
requirements” of RSA 516:29-b, and that the treating physicians were allowed
to testify as to causation, diagnosis, prognosis, and the extent of Danielle
Cheney’s injuries. The plaintiffs also moved to extend the discovery deadlines,
asserting that Danielle Cheney was treating with new medical providers “for
continuing pain in her neck and back, and for persistent migraine-type
headaches,” that they intended to offer evidence of such treatment at trial, and
that they were unable to “provide full discovery concerning this treatment
under the existing disclosure deadlines.” The plaintiffs requested that the trial
court “[e]xtend and adjust discovery deadlines as may be necessary,” and that
it continue trial, which was scheduled to begin on February 4, 2019.

The trial court held a hearing on the motions on January 10, 2019. At
the hearing, the plaintiffs conceded that Danielle Cheney’s treating physicians
would not testify as experts. Nevertheless, they argued that the physicians
should be allowed to testify as to causation and “some opinion issues because
that’s the nature of what they have to do in assessing how to treat someone.”
The trial court agreed with the latter assertion “within reasonable parameters,”
but noted that physicians testifying solely as fact witnesses could not opine
“about things that are not fact based.” The trial court observed that, without
hearing the treating physicians’ testimony, it could not determine whether any
specific testimony amounted to impermissible expert testimony. Thus, the trial
court stated that it would grant the motion to exclude based upon the fact that
the plaintiffs had not disclosed any expert witnesses, but that it would allow
the physicians to offer “fact” testimony at trial, and if the defendant objected to
any testimony on the basis that it constituted expert testimony, it would then
determine whether the testimony amounted to impermissible expert testimony
or permissible fact testimony. The trial court’s written order on the motion to
exclude expert testimony stated: “AFTER HEARING, THE MOTION IS
GRANTED SUBJECT TO REVISITING AT TRIAL. SEE RECORD.”

With respect to the motion to extend the discovery deadlines, the trial
court stated at the hearing that it would deny the motion and the plaintiffs’
requested continuance. The court observed that the underlying automobile
collision had occurred several years prior to the hearing, and that trial was
scheduled to begin in less than a month. The court further observed that, in
personal injury cases involving ongoing medical issues, it is not uncommon for

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plaintiffs to seek compensation for future damages and to introduce expert
testimony to prove such damages, but that the plaintiffs here had chosen not
to disclose an expert. Although the trial court stated that Danielle Cheney
would be allowed to testify concerning her current and ongoing pain, it
reasoned that her ongoing medical issues did not entitle the plaintiffs to the
“benefit of a continuance and . . . unending, never-ending litigation.”

The subsequent jury trial resulted in a verdict for the defendant. On
appeal, the plaintiffs have not provided a trial transcript. The defendant
represents, and the plaintiffs do not dispute, that two physicians and a
chiropractor testified on behalf of the plaintiffs at trial. The plaintiffs have
provided a full transcript of a trial deposition of one of the physicians, which
included objections to certain questions propounded by the plaintiffs on the
basis that the questions called for impermissible expert testimony, and the
physician’s answers to those questions subject to the objections. However, the
defendant further represents, again without dispute, that prior to trial, the trial
court ruled on the objections raised at the deposition, and that based upon the
trial court’s rulings, the video of the deposition shown to the jury was edited.
The full transcript of the deposition provided by the plaintiffs does not reflect
the trial court’s rulings on the evidentiary objections or any testimony that was
not shown to the jury in accordance with the trial court’s rulings.

On appeal, the plaintiffs argue that the trial court unsustainably
exercised its discretion by limiting the testimony of the treating physicians, and
by refusing to extend the discovery deadlines and continue trial.1 We disagree.

By its express language, RSA 516:29-b, I, requires the pretrial disclosure
of any witness who may provide expert opinion testimony on behalf of a party,
regardless of whether the witness was retained to provide such testimony, or
whether the witness is also a “fact” witness in the case. Here, the plaintiffs
conceded that they had not disclosed the treating physicians as expert
witnesses, and that the treating physicians were not testifying as “expert”
witnesses. Moreover, the pretrial ruling allowed the treating physicians to
testify regarding their treatment of Danielle Cheney, and expressly invited the
parties to revisit at trial whether any specific testimony amounted to
impermissible expert testimony or permissible fact testimony. Accordingly, the
pretrial ruling did not amount to a definitive ruling as to the admissibility of
any specific testimony of the treating providers, see Laramie v. Stone, 160 N.H.
419, 431 (2010) (stating that a trial court’s decision to defer ruling on a motion
in limine is not a definitive ruling for purposes determining whether the motion
properly preserved an issue for appellate review), and in the absence of a

1 We assume, without deciding, that the plaintiffs have preserved their arguments that the trial

court erred by refusing to extend the discovery deadlines or continue trial, despite the
plaintiffs’ failure to raise these issues in their notice of appeal. But see State v. Blackmer, 149
N.H. 47, 49 (2003).

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complete trial transcript, we must assume that a transcript would support any
limitations that the trial court ultimately placed upon the providers’ testimony
at trial, see Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). Finally,
as the trial court observed, at the time of the motions hearing, the underlying
accident had occurred more than four years previously, and trial was
scheduled to begin in less than a month. On this record, we cannot say that
the trial court’s decisions to exclude “expert” testimony from trial and not to
continue trial or extend the discovery deadlines were clearly untenable or
unreasonable to the prejudice of the plaintiffs’ case. Figlioli, 151 N.H. at 626.

Under the circumstances, the defendant’s motion to dismiss the appeal
for failure to provide an adequate record is moot. To the extent that the
plaintiffs, in their objection to the motion to dismiss, request leave to
supplement the record with additional pleadings and portions of the trial
transcript, the request is denied.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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