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NANCY GRISWOLD v. JEFFREY STERN (AC 31367)
Harper, Bear and Mihalakos, Js. Argued September 21, 2010--officially released January 25, 2011

(Appeal from Superior Court, judicial district of Waterbury, Brunetti, J.) David R. Gronbach, with whom, on the brief, was Robert L. Keepnews, for the appellant (plaintiff). Jessica D. Meerbergen, with whom, on the brief, was William J. Scully, for the appellee (defendant).

Opinion

MIHALAKOS, J. The plaintiff, Nancy Griswold, appeals from the summary judgment rendered by the trial court in favor of the defendant, Jeffrey Stern, a physician. On appeal, the plaintiff claims that the court improperly rendered summary judgment in favor of the defendant after the plaintiff had withdrawn her expert witness disclosure. We affirm the judgment of the trial court. The following facts and procedural history are relevant to the disposition of the plaintiff's appeal. The plaintiff filed this medical malpractice action on December 21, 2006, alleging that the defendant, who served as the plaintiff's primary care physician from 1992 through October, 2005, deviated from the standard of care by failing to investigate properly and to diagnose the plaintiff's thyroid abnormality. The plaintiff alleges that, as a result of the defendant's negligence in failing to investigate her symptoms fully or to refer her to a specialist, she experienced a delay in diagnosis and resulting treatment for thyroid cancer. On January 3, 2007, the defendant served the plaintiff interrogatories and requests for production that sought information concerning any expert testimony the plaintiff intended to produce at trial. On May 2, 2007, the plaintiff responded that no expert had yet been retained but that ``[u]pon retention of an expert, this information will be provided to [the defendant].'' After attending several status conferences, the parties agreed to a trial date of November 4, 2008. On March 28, 2008, the defendant filed a motion to dismiss on the basis that the plaintiff had failed to set forth in a written opinion from a similar health care provider a causal link between the alleged deviation from the standard of care and the treatment that the plaintiff received from the defendant. The motion was argued before the court, Alvord, J., on June 23, 2008, and was denied.1 On September 15, 2008, the plaintiff moved to continue the trial, which was opposed by the defendant. The court, Agati, J., denied the plaintiff's motion. Thereafter, on September 18, 2008, the plaintiff disclosed her expert witness, Martin Surks, a physician, to testify that the defendant breached the standard of care owed to the plaintiff. The defendant objected to the plaintiff's disclosure and moved to preclude Surks' testimony on the ground that the disclosure was untimely and would be unduly prejudicial. Because the defendant's objection was still pending and trial had been set to commence on November 4, 2008, the court postponed the trial and did not set a new trial date. On November 10, 2008, the court, Alvord, J., heard argument on the defendant's motion to preclude. On November 12, 2008, the court issued four specific orders: ``1. Court overrules Defendant's objec-

tion to disclosure of Dr. Surks, [the plaintiff's] [e]xpert. 2. Court orders Plaintiff make Dr. Surks available for deposition, said deposition to be completed by 12-3108. Counsel to provide Court date(s) of said deposition. 3. Court orders Defendant to make Dr. Stern available for deposition completion by 1-15-09. 4. Court orders Defendant to disclose [his] [e]xperts by 3-15-09.'' On November 14, 2008, the plaintiff filed a motion for modification of the court's orders, requesting that the court reverse the deposition deadline dates so that the defendant would be deposed before Surks. On December 1, 2008, the motion was denied. Subsequently, after the plaintiff failed to produce Surks for deposition as required by the court's order, on January 2, 2009, the defendant filed a second motion to preclude the testimony of Surks. On January 16, 2009, the plaintiff formally withdrew her disclosure of Surks as an expert witness.2 On the same day, the defendant filed a motion for summary judgment, alleging that the plaintiff legally could not sustain her medical malpractice claim without an expert witness.3 The plaintiff objected to the defendant's motion, arguing that expert testimony may not be necessary and, alternatively, that the pertinent inquiry was whether the plaintiff could produce an expert at trial ``with appropriate and necessary discovery . . . .'' On March 16, 2009, the court, Brunetti, J., heard argument on the defendant's motion for summary judgment. On April 2, 2009, the court granted the defendant's motion for summary judgment and, in a memorandum of decision filed on April 6, 2009, rejected the plaintiff's two proffered reasons for her lack of an expert: ``In support of his motion for summary judgment, the defendant argues that the plaintiff has failed to present any expert evidence establishing that he deviated from the standard of care in treatment of the plaintiff. In response, the plaintiff argues that expert testimony may not be necessary in the instant action, as an expert witness is unnecessary in cases involving gross negligence. In support of this assertion, she has presented the court with an affidavit detailing the defendant's lack of record keeping in relation to the amount of times she visited with him. In the alternative, she argues that she was precluded from obtaining an expert because of an improper scheduling order set in place by Judge Alvord on November 12, 2008. She argues that she had an expert but because of the scheduling order in place, it would have been prejudicial to have her expert deposed prior to the defendant being deposed, so she withdrew her expert.'' The court concluded that expert testimony was necessary to prove the plaintiff's case: ``In the present case, the procedures and the risk factors related to the diagnosis and treatment of stage IV-A papillary thyroid cancer does not fall within the common knowledge of laypersons. The record keeping of the defendant and

his alleged failed diagnosis of cancer is not the equivalency of leaving a surgical instrument in a patient. It is not so obvious or common in everyday life, nor is it so grossly negligent as to be clear even to a layperson. The plaintiff needs expert testimony to establish her claim of medical negligence and has not done so.'' The court then set forth its basis for the entry of summary judgment in favor of the plaintiff: ``Summary judgment is appropriate for the defense if expert testimony regarding any of the required elements of a medical malpractice action is lacking. `[The Appellate Court] has approved the grant of a summary judgment in a medical malpractice case when . . . it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding [one of the required elements].' Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 766, 785 A.2d 588 (2001).'' The plaintiff, thereafter, filed a motion for reargument, which was denied by the court. This appeal followed. Before turning to the plaintiff's claims, we first set forth our well settled standard of review. ``Because the court's decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. . . . Practice Book

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