Judicial District of Tolland


      Medical Malpractice; Whether, Where Trial Court had Granted Plaintiffs' Motion to Preclude Expert Testimony, Defendant Treating Physician's Testimony Constituted Expert Testimony.  In July, 2001, Henry Wyszomierski, a sixty-nine year old with a cirrhotic liver, was diagnosed as having pancreatitis.  After a CT scan revealed gallstones in Wyszomierski's gallbladder, his physician, Francis Siracusa, surgically removed his gallbladder and performed an additional procedure to detect and remove any gallstones present in his common bile duct.  During this other procedure, a gallstone was detected and, since attempts to remove it were unsuccessful, an endoscopic procedure known as an ERCP, which involves no incisions, was performed several days later to remove it.  No gallstone, however, was detected at that time.  Subsequently, Wyszomierski experienced severe abdominal pain, and exploratory surgery revealed bleeding under his liver at the site where the gallbladder had been removed.  Over the next two years, Wyszomierski's liver and kidney functions declined, and he and his wife commenced this malpractice action against Siracusa, among others.  Wyszomierski later died.  In their action, the plaintiffs claimed that Siracusa was negligent in not informing them of the availability of an ERCP as an alternative to surgical removal of the gallbladder and that he was negligent in performing surgery, before performing an ERCP, based on the high risk of surgery due to Wyszomierski's cirrhosis.  Before trial, the court granted the plaintiffs' motion in limine precluding the defendants from presenting expert testimony due to their failure to comply with a scheduling order.  At trial, the plaintiffs put on an expert who testified that an ERCP should have been performed before surgery because it would have confirmed that the pancreatitis was alcohol-induced and not caused by gallstones in the common bile duct.  He thus opined that an ERCP would have obviated the need for gallbladder surgery in this high-risk patient.  The court permitted Siracusa to testify about the reasons for his treatment decisions, although it did not allow him to opine on whether his decisions met the standard of care.  During his testimony, the plaintiffs objected to several questions directed at him on the basis that they sought to elicit opinion testimony.  The trial court overruled these objections.  After trial, the court rendered judgment for the defendants.  Among other things, it rejected the claim that an ERCP should have been performed before the surgery, finding that it would not have been definitive on the source of the pancreatitis, which could have resulted from gallstones in the common bile duct or from long-term alcohol abuse, irrespective of the presence of gallstones.  It thus rejected the plaintiffs' expert's opinion that an earlier ERCP would have confirmed that the pancreatitis was alcohol-induced, stating that this opinion was based on the flawed assumption that no gallstones in the common bile duct would have been detected in an earlier ERCP.  On appeal, the plaintiffs assert that the court improperly allowed Siracusa to testify as an expert witness after granting the motion in limine.  They also contend, among other things, that the court improperly rejected the testimony of their expert witness as being based on a flawed assumption.