Krag v. Uvm Medical Ctr

7ermont Superior Court
Filed 05/28/25
Chittenden Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 22-CV-1822
175 Main Street
Burlington VT 05402
802-863-3467
.vermontjudiciary.org

DAVID KRAG, as Executor of the Estate of
Peter Krag,
Plaintiff

V. DECISION ON MOTION

UNIVERSITY OF VERMONT MEDICAL
CENTER, INC.,
Defendant

RULING ON MOTION TO STRIKE PLAINTIFF'S PROPOSED REBUTTAL EXPERT

A jury trial is set for June 2, 2025 in this medical negligence action. On May 15th,
Plaintiff disclosed a proposed rebuttal expert witness, Dr. Michael Sucher. Defendant seeks to
strike that witness on grounds that his disclosure is untimely and allowing him to testify would
be prejudicial. As discussed below, the Court GRANTS IN PART the motion to strike, but
reserves ruling on whether the motion will implicate true rebuttal testimony.

The civil rules require the disclosure of all expert witnesses, V.R.C.P. 26(b)(5)(A), and
parties have a duty to supplement all discovery responses, including the disclosure of experts.
V.R.C.P. 26(e)(1)(B). This includes any opinion to be offered in response to the opinions of
other parties' experts, which is what Dr. Sucher's proposed testimony seems to be. See, e.g.,
McCullough a Archbold Ladder Co., 605 N.E.2d 175, 179 (Ind. 1993) (holding that "the
nondisclosure of a rebuttal witness is excused only when that witness was unknown and
unanticipated; known and anticipated witnesses, even if presented in rebuttal, must be identified
pursuant to a court order, such as a pre-trial order, or to a proper discovery request').

In this case, the deadline for the close of discovery has long passed, and Defendant's
experts' opinions were known to Plaintiff since at least August 2024. Thus, any opinions by Dr.
Sucher offered in response to Defendant's experts should have been disclosed long ago and
within the discovery schedule. Given Plaintiff's failure to do so, and in view of the resulting
prejudice to Defendant, his testimony on such topics will not be allowed at trial. See Hartnett
Med. Ctr. Hosp. of Vermont, 146 Vt. 297, 300, 503 A.2d 1134, 1136 (1985) ("[T]he trial court has
wide discretion in determining whether to allow witnesses to testify when their identity had not
been disclosed before trial." (citation omitted)).

In opposition to the motion to strike, Plaintiff relies on Zinn v. Tobin Packing Co., 140 Vt.
410, 438 A.2d 1110 (1981) and Barker Brattleboro Retreat, No. S0292-00RCC, 2006 WL
4808317 (Vt. Super. Ct. May 31, 2006) (Norton, J.). However, Zinn and Barker do not address
the situation where a party was aware of the opinions and anticipated testimony of the opposing
party’s experts months before trial and failed to disclose the “rebuttal” expert; therefore, those
cases are distinguishable. Plaintiff also argues that Dr. Sucher may be called to rebut
Defendant’s experts’ anticipated trial testimony offering opinions that were not disclosed. But
expert witnesses typically are not permitted to testify on matters that go beyond their disclosures
and the information obtained in depositions; thus, it seems unlikely that Plaintiff’s proposed
scenario will occur here.

Nevertheless, the Court reserves ruling on Defendant’s motion to the extent it addresses
“true rebuttal testimony,” that is, “a new matter or new facts” injected into the case by
Defendant. Schrader v. Tjarks, 522 N.W.2d 205, 209 (S.D. 1994); cf. Thompson v. Illinois
Power Co., 603 N.E.2d 1303, 1307 (Ill. App. Ct. 1992) (“This case . . . does not present a
situation of some emergency necessitating the disclosure of a new expert. Plaintiff knew six
months before trial that defendants were contesting the issue of his inability to return to work and
yet plaintiff did not disclose [the expert] until several days into the trial.”). Further, before being
permitted to call Dr. Sucher, Plaintiff will be required to demonstrate that the substance of
Defendant’s experts’ trial testimony was undisclosed and unknown to the extent justifying
disclosure of a rebuttal expert two weeks before trial. In addition, should Defendant wish to
depose Dr. Sucher, Plaintiff must make Dr. Sucher reasonably available to Defendant for such
purpose prior to the start of trial, in a manner agreed to by both parties. 1

Order

Defendant’s motion to strike (Mot. # 27) is GRANTED IN PART. The Court reserves
ruling on Defendant’s motion to the extent it addresses “true rebuttal testimony,” that is, a new
matter or new facts introduced by Defendant.

Electronically signed on May 27, 2025 at 5:17 PM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

1
The Court agrees with Defendant that continuing the jury trial is not an appropriate remedy
for Plaintiff’s untimely disclosure.
2