Robert LINZ, et al v. UNIVERSITY OF CONNECTICUT HEALTH CENTER, et al DOCKET NO. HHD CV 20-6123878-S Superior Court of Connecticut, JUDICIAL DISTRICT OF HARTFORD. AT HARTFORD November 21, 2024 Counsel Slager Madry, LLC, 750 East Main Street, Suite 810, Stamford, CT 06902, for Plaintiffs Robert Linz, Andrea Linz. Stockman O'Connor, PLLC, 32 Church Hill Road, Suite C201, Newtown, CT 06470, for Defendants The University of Connecticut Health Center, Uconn Health Partners, John Dempsey Hospital. Klau, Daniel J., Judge MEMORANDUM OF DECISION RE: MOTION FOR ORDER OF COMPLIANCE (#145) AND OBJECTION (#148) *1 General Statutes § 52-190a[1] and Practice Book § 13-2[2] create a statutory right or privilege in medical malpractice cases against using discovery to learn the identity of the author of a good faith opinion letter except to question the validity of a good faith certificate. The question presented is whether a plaintiff waives that right or privilege if they disclose the health care provider who wrote the opinion letter as a testifying expert at trial. Practice Book § 13-4 (b) (3) requires the disclosing party, not less than two weeks before a deposition of the disclosed expert, to produce “all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case....” Full compliance with § 13-4 (b) (3), standing alone, would require the disclosing party to disclose the good faith opinion letter, thereby identifying the expert as the letter's author. However, several Superior Court opinions have held that a plaintiff's decision to disclose the author of a good faith opinion letter as a testifying expert does not open the door to discovery of the expert's authorship of the letter under § 13-4 (b) (3). Those courts have relied on § 52-190a and Practice Book § 13-2 to conclude that discovery of the identity of an opinion letter's author is not permitted even if the author is later disclosed as a testifying expert. At least one Superior Court has reached a contrary conclusion. For the following reasons, this court concludes that the rights or privileges in § 52-190a and § 13-2 concerning the discovery of opinion letters are waivable—just like many other constitutional, statutory, common law, and Practice Book rights and privileges. Thus, by disclosing the author of an opinion letter as a testifying expert at trial, a plaintiff waives the right to object to discovery of the expert's authorship of the letter and must comply with Practice Book § 13-4 (b) (3). Moreover, fundamental tenets of due process, including a defendant's right to cross-examine a plaintiff's disclosed expert, counsel strongly against allowing a plaintiff to hide a disclosed expert's role in drafting the opinion letter. I BACKGROUND *2 The plaintiffs commenced this medical malpractice action against the defendants after obtaining permission from the Office of Claims Commissioner to sue the State of Connecticut. In accordance with General Statutes § 52-190a, the plaintiffs appended to their complaint a good faith opinion letter authored by a board-certified urologist. Per § 52-190a, the plaintiffs expunged the name of the opinion letter's author. The plaintiffs subsequently disclosed Dr. Sandip M. Prasad as an expert who would testify regarding the standard of care applicable to a urologist and that the urologist defendants deviated from that standard. The defendants noticed Dr. Prasad's deposition. The notice included requests for production. Requests three and four asked Dr. Prasad to produce “[a]ll time records, diaries and bills, maintained, prepared, and/or rendered in connection with your retention in this matter and your investigation and evaluation of this case” and “[y]our complete file in connection with this matter, your investigation, evaluation, and opinions....” The plaintiffs objected to these requests to the extent they “would require the disclosure of information protected from disclosure pursuant to [ ] § 52-190a. Subject to and without waiving these objections, Dr. Prasad will produce responsive materials he has in his possession not protected from disclosure pursuant to Connecticut General Statutes § 52-190a. Nothing in this objection shall be construed as an admission as to who was the author of the Good Faith Certificate.” Docket Entry No. 140.00. Defendants proceeded with Dr. Prasad's deposition, during which the plaintiffs renewed their objection to any questions concerning whether Dr. Prasad authored the good faith opinion letter. After the deposition, the defendants filed a motion for an order compelling the plaintiffs to produce any documents in response to requests three and four from the notice of deposition. The plaintiffs filed an objection. On September 9, 2024, the court heard oral arguments on the motion and objection. II DISCUSSION A Background of § 52-190a In 2005, “the legislature enacted P.A. 05-275 as a comprehensive effort to control significant and continued increases in malpractice insurance premiums by reforming aspects of tort law, the insurance system and the public health regulatory system.” Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 18, 12 A.3d 865 (2011). One of the amendments P.A. 05-275 made to § 52-190a was “a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that ‘there appears to be evidence of medical negligence’ and to attach the opinion to the certificate of good faith to be filed with the complaint.” Id. The General Assembly recognized that the new written opinion letter requirement constituted a “significant ... hurdle [for plaintiffs] to overcome in order to file a medical malpractice case.” Id., 300 Conn. 20. Perhaps to ameliorate the significance of the hurdle, P.A. 05-275 also amended § 52-190a to limit discovery concerning the opinion letter except when a defendant wanted to challenge the validity of a plaintiff's good faith certificate. “By protecting the identity of the author of such written opinion the legislature sought to remove one obstacle that a plaintiff might encounter in overcoming that hurdle.” Batista v. Ehrlich, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. CV-14-6023277-S (August 11, 2016, Genuario, J.). *3 In 2011, the judges of the Superior Court amended Practice Book § 13-2 to limit discovery concerning opinion letters except as permitted by § 52-190a. Practice Book (2011) § 13-2. B Superior Court Decisions As noted, several Superior Courts have addressed the waiver question before the court and have held that discovery concerning a good faith opinion letter is not permitted even if the plaintiff subsequently discloses the author as a testifying expert. Laskowski v. Cherry Brook Health Care Center, Superior Court, judicial district of Hartford, Docket No. CV-14-6053483-S (July 11, 2017, Robaina, J.); Batista v. Ehrlich, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. CV-14-6023277-S (August 11, 2016, Genuario, J.); D'Uva v. Fountas, Superior Court, judicial district of Waterbury, Docket No. CV-13-6019266-S (October 19, 2016, Brazzel-Massaro, J.). Relying on the text of § 52-190a and Practice Book § 13-2, these courts held that the bar concerning discovery of an opinion letter's author and related matters is absolute except to question the validity of a good faith certificate. For example, Judge Genuario applied the plain meaning rule of statutory construction to conclude that the language in § 52–190a noting “[s]uch written opinion shall not be subject to discovery by any party” was “simple, straightforward, and unambiguous.” Batista v. Ehrlich, supra, 2, 7. But see Quiros v. Elderhouse, Inc., Superior Court, judicial district of Stamford, Docket No. CV-13-6017788-S (April 25, 2014, Truglia, J.) (58 Conn. L. Rptr. 90) (“Once an expert has been disclosed, all materials obtained, created or relied on by the expert, including those obtained, created or relied on in preparation of the good faith certificate, must be disclosed.”). C Appellate Authority Neither party has identified any Appellate or Supreme Court opinion that directly addresses the issue at hand. However, the defendants place significant weight on the Appellate Court's opinion in Epright v. Liberty Mutual Ins. Co., 212 Conn. App. 637, 276 A.3d 1022 (2022), aff'd, 349 Conn. 679, 321 A.3d 354 (2024) [hereinafter “Epright”]. The Epright appeals concerned a trial court's order sanctioning an attorney for engaging in ex parte communications with the other side's disclosed expert. To determine whether the trial court erred in imposing sanctions, the Appellate Court analyzed Practice Book § 13-4, which expressly authorizes depositions of disclosed experts but is silent on ex parte communications. During that analysis, the Appellate Court explained that a fundamental transformation occurs when an undisclosed, pre-litigation consulting expert is disclosed as an expert who will testify at trial. “Following an expert disclosure, however, a transformation occurs. By making the disclosure, the attorney essentially certifies to the court and the opposing party that the expert is no longer a consultant but someone who has relevant ‘scientific, technical or other specialized knowledge’ that can ‘assist the trier of fact in understanding the evidence or in determining a fact in issue.’ Conn. Code Evidence § 7-2.... Because a disclosed expert has been identified as someone who can help the fact finder ascertain the truth in the matter, the opposing party is permitted to acquire information about the expert in connection with his or her opinions, even if some of that information may be helpful to the opposing party's case. This, in fact, is why our rules allow depositions of expert witnesses; see Practice Book § 13-4 (c); and require that the disclosing party, in the absence of certain exceptions, ‘produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case....’ Practice Book § 13-4 (b) (3). Such materials logically and necessarily include all communications between the expert and the attorney who hired him concerning the case, including communications from the attorney to the expert as to his theory of the case and his hopes or expectations as to the nature and substance of the expert's opinions about the case.” (Emphasis added.) Id., 659-60. *4 The Supreme Court concurred with the Appellate Court's view of the fundamental transformation that occurs when a party discloses a consulting expert as a testifying witness. “The difference in treatment between disclosed expert witnesses and nontestifying experts in Practice Book § 13-4 is reasonable based on their different roles in the litigation process. The role of a disclosed expert witness is distinct from that of a nontestifying expert consultant because nontestifying experts often consult with attorneys concerning trial strategy. As a result, discovery of nontestifying experts’ opinions is limited because their knowledge and opinions are integrally intertwined with an attorney's work product.... “Communication with a disclosed expert is treated differently for good reason. Permitting a party to take a deposition of an opposing party's disclosed expert and to review the materials obtained, created, and relied on by that expert in arriving at his or her opinion is necessary because the disclosed expert will testify at trial and be subject to cross-examination. If this were not so, parties would be unduly hampered in their trial preparation and ability to effectively cross-examine the expert.” (Emphasis added.) Epright, supra, 349 Conn. 692–93. The plaintiffs argue that Epright is irrelevant because neither the Appellate Court nor the Supreme Court had to consider or address the text in General Statutes § 52-190a and Practice Book § 13-2 limiting discovery concerning good faith opinion letters. The court agrees that Epright is not controlling precedent but disagrees that it is irrelevant. D Waiver Argument Analysis Common law, Practice Book, statutory, and even constitutional rights and privileges are waivable. E.g., Soares v. Max Services, Inc., 42 Conn. App. 147, 175, 679 A.2d 37 (1996) (“As a general matter, rights granted by statute may be waived unless the statute is intended to protect the general rights of the public rather than private rights.... Rights conferred by constitutions or statute may be waived provided such rights and privileges rest in the individual and are intended for his sole benefit.”).[3] The Epright opinions apply this established waiver principle to disclosures of expert witnesses. The work file of an undisclosed consulting expert is not discoverable because of the work product privilege. However, a party's decision to transform the consulting expert into a disclosed testifying expert constitutes a waiver of that privilege. The disclosed expert's work file must be disclosed in its entirety on request, even if it contains prelitigation communications with counsel and other documents that “may yield grist for the adversary's mill.” Epright v. Liberty Mutual Ins. Co., 349 Conn. 692 (quoting Long Term Capital Holdings v. United States, United States District Court, Docket No. 3:01CV1290 (JBA) (D. Conn. May 6, 2003)). The plaintiffs contend that the plain language of § 52-190a precludes the court from invoking the waiver doctrine. In their view, the statutory text that a “written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate” is an absolute, nonwaivable bar on discovery. The court does not agree. Consider the fifth amendment of the United States Constitution: “No person ... shall be compelled in any criminal case to be a witness against himself....” From a plain language perspective, a defendant may take the witness stand, offer self-serving testimony, and then refuse to answer a prosecutor's damaging questions on cross-examination because the prosecutor is attempting to compel the defendant to be a witness against himself. *5 Of course, that plain language interpretation of the fifth amendment is absurd. A defendant who voluntary testifies at a criminal trial necessarily waives their fifth amendment privilege against self-incrimination. See, e.g., Brown v. United States, 356 U.S. 148, 155, 78 S. Ct. 622 (1958) (“[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.”) (quoting Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944 (1900)); Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 146–47, 470 A.2d 246 (1984) (“The privilege against self-incrimination is a constitutional shield against a person being compelled to convict himself out of his own mouth. It may not be used as a sword to deny others information which is rightfully theirs.”). Cf. United States v. Nobles, 422 U.S. 225, 239–40, 95 S.Ct. 2160 (1975) (“Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination.”). Similarly, consider General Statutes § 52-577: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” Again, from a plain language perspective, § 52-577 is clear and unambiguous regarding the time frame within which a plaintiff may assert a tort claim. Yet, it is well established that most statutes of limitations are waivable. To be clear, it is not the court's position that the “no discovery” text in § 52-190a is ambiguous. It is not. Rather, the problem is that the text simply does not address the question at the heart of the present dispute, to wit, whether the discovery privilege regarding opinion letters is waivable. In the court's view, the privilege against discovery in § 52-190a is intended to protect private rights, not the general rights of the public. Therefore, the privilege is waivable. The plaintiffs’ plain language argument also raises serious due process concerns because it would hinder a defendant's ability effectively to cross-examine a health care provider expert at trial. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 574, 409 A.2d 1020 (1979) (quoting Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011 (1970)). See Epright, supra, 349 Conn. 692–93 (party must not be hampered in ability to cross-examine opposing party's expert effectively). Any competent defense counsel cross-examining a plaintiff's expert at trial would want to question the expert about the evolution of their opinions and about inconsistencies, real or apparent, between their trial testimony and pretrial statements reflected in documents in their case file, including a good faith opinion letter. It is not difficult to imagine a health care provider's trial testimony differing in material respects from what they wrote in an opinion letter. The expert's answers to cross-examination questions about the opinion letter may well affect their credibility. Yet, if the court credits the plaintiffs’ arguments, such questions would be off limits because they would be tantamount to discovery concerning the opinion letter.[4] Absent a clear and unequivocal statement by the General Assembly that it intended the discovery privilege in § 52-190a to be nonwaivable—and no such statement exists—this court will not adopt an interpretation of § 52-190a that gives rise to serious due process concerns. For all the foregoing reasons, the court holds that the salient text in § 52-190a concerning opinion letter discovery creates a waivable statutory right or privilege. Because the discovery privilege in Practice Book § 13-2 merely implements § 52-190a, it follows that the Practice Book privilege also is also waivable. When, as here, a plaintiff elects to disclose a health care provider who authorized an opinion letter as a testifying expert at trial, the plaintiff waives that privilege and must comply with Practice Book § 13-4 (b) (3).[5] III ORDERS *6 For the foregoing reasons, the defendants’ Motion for Order of Compliance is GRANTED and the plaintiffs’ Objection is OVERRULED. The plaintiffs shall disclose all documents that fall within the scope of Practice Book § 13-14 (b) (3), including, but not limited to, any good faith opinion letter Dr. Prasad may have authored. Footnotes [1] Section 52-190a provides in relevant part, that “[t]he complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider ... that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney ... shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.” (Emphasis added.) [2] Practice Book § 13-2 provides in relevant part, “[w]ritten opinions of health care providers concerning evidence of medical negligence, as provided by General Statutes § 52-190a, shall not be subject to discovery except as provided in that section.” [3] “[T]he legislature is presumed to know the state of the law when it enacts a statute.” State v. Davis, 255 Conn. 782, 791, 772 A.2d 559 (2001). Therefore, the court presumes the legislature knew the state of the law concerning waiver of statutory and constitutional rights when it enacted P.A. 05-275 and included the relevant discovery language in § 52-190a. [4] This must needs be the plaintiffs’ position. If it is not, i.e., if the plaintiffs concede that defense counsel may question a plaintiff's expert at trial about whether they authored the good faith opinion letter and what they wrote in the letter, then it is illogical to maintain that defense counsel cannot use pretrial discovery to obtain that same information from a disclosed expert at a deposition. [5] Throughout this opinion, the court has viewed the discovery right or privilege in § 52-190a as belonging to the plaintiff. It would not be irrational, however, to treat the privilege as belonging to the healthcare provider who authored the good faith opinion letter. Assuming that view is correct, the court's waiver analysis would not change. By agreeing to serve as a testifying expert at trial, the author of the opinion letter waives their privilege against discovery of their identity as the author.