Barnes v. Hodys

307 A.3d 173

Lauren BARNES

v.Nancy HODYS.

Nancy Hodys et al.

v.Lauren Barnes.

No. 2022-43-M.P. (PC 16-2181)

No. 2022-44-M.P. (PC 17-5776)

Supreme Court of Rhode Island.

January 23, 2024

Providence County Superior Court, Associate Justice R. David Cruise

Robert E. Craven, Esq., for Plaintiff/Defendant.

Mark P. Dolan, Jr., Esq., for Defendant/Plaintiff.

Present: Suttell, C.J., Goldberg, Robinson, JJ.

OPINION

Chief Justice Suttell, for the Court.

These consolidated cases are before the Court on a writ of certiorari. The cases arise out of an automobile accident involving Lauren Barnes and Nancy Hodys.¹ Barnes seeks review of a Superior Court order denying her request to modify the case’s scheduling order, which prohibited her from either replacing a particular expert witness or "disclosing any additional expert witness(es) in the field[s] of toxicology, pharmacology or other similar specialty." This Court issued a writ of certiorari and directed the parties to appear and show cause why the issues raised should not be summarily decided. After considering the parties’ written and oral submissions and carefully reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth herein, we quash the order of the Superior Court and remand to that tribunal with instructions that it conduct a meaningful analysis of the issues raised, consistent with this opinion.

I Facts and Travel

On December 14, 2014, Barnes and Hodys were involved in a head-on automobile collision on Putnam Pike in Glocester, Rhode Island. Both sustained serious, life-threatening injuries. Neither has any memory of the accident. Each was discovered unconscious and had to be extracted from her vehicle by first responders.

According to Paul Silva, an EMT who provided deposition testimony concerning his observations at the scene of the accident, a syringe was found in Barnes’ car.² Silva reportedly noticed a so-called "track mark"—scarring that is commonly associated with habitual intravenous drug use—on Barnes’ arm, as well as a "slight improvement" in her "level of consciousness" after she was administered Narcan, a drug used to reverse the effects of narcotics. Barnes’ urine later tested positive for opioids and benzodiazepines.

On May 13, 2016, Barnes filed a complaint against Hodys in Providence County Superior Court, alleging that Hodys’ car crossed the double-yellow line and caused the collision. She claimed that Hodys’ negligence was the cause of her "personal injuries, permanent injuries, emotional trauma, pain and suffering, lost wages, lost earning capacity, and property damage." Hodys filed an answer on August 2, 2016, denying Barnes’ claims and asserting various affirmative defenses, including an allegation that Barnes was intoxicated at the time of the crash.

On December 1, 2017, Hodys, joined by her husband, Jack Hodys, filed a complaint against Barnes. Hodys alleged that Barnes’ negligence caused the accident, resulting in Hodys’ extensive personal injuries and Jack Hodys’ loss of consortium. Barnes filed an answer on December 19, 2017. An order consolidating the two cases in the Superior Court was entered on February 22, 2018.

Among other contentious questions of fact, the parties disputed whether Barnes was intoxicated at the time of the collision. Barnes represented that she planned to challenge the admissibility of evidence of her alleged narcotics use in a pretrial hearing in accordance with Handy v. Geary, 105 R.I. 419, 252 A.2d 435 (1969). See Handy, 105 R.I. at 431, 252 A.2d at 441-42 (requiring a preliminary evidentiary hearing regarding actual intoxication before evidence of the consumption of an intoxicant can be admitted). To that end, Barnes engaged David M. Benjamin, Ph. D., as an expert witness in August 2018. Doctor Benjamin is a Doctor of Pharmacology with postdoctoral training in clinical pharmacology and pharmacokinetics.

Doctor Benjamin provided Barnes with a report on March 3, 2020. Relying on an EMS report, Barnes’ Rhode Island Hospital records, Silva’s deposition, and Dr. Benajmin’s own expertise in pharmacology and the interpretation of urine drug-screen results, Dr. Benjamin concluded that it was "not possible to determine" whether head trauma, controlled substances, or medication caused the "impairment" that medical personnel observed in Barnes after the accident. He opined that symptoms of Barnes’ serious head injury would be "indistinguishable" from the effects of controlled substances and discounted the urine drug-screen results as evidence of mere "prior exposure" to substances that could have been "ingested days earlier." (Emphasis omitted.) He also claimed that Narcan would have caused Barnes’ level of consciousness to "improve significantly," rather than just slightly, if opioids were the cause of her post-accident impairment. For her part, Hodys engaged a pharmacology expert, Errol Green, M.D., to testify that "drugs taken by Ms. Barnes prior to the accident (such as [h]eroin) contributed to the positive urine opioid screen result."

On June 12, 2020, Barnes moved to set a scheduling order for fact discovery, expert disclosures, and dispositive motions. Hodys filed a limited objection, but did not object to Barnes’ proposed timeline for expert witness discovery. On September 24, 2020, a scheduling order with deadlines for expert disclosures and discovery entered by agreement of the parties.

In compliance with this original scheduling order, Barnes served Hodys with her expert disclosures before the agreed-upon deadline in January 2021. The parties thereafter agreed to extend the timeline as to Hodys’ experts and any rebuttal experts, as well as to overall expert discovery and dispositive motions. The parties agreed to push the overall expert discovery date back twice more, resulting in a final deadline of January 15, 2022.

Op November 10, 2021, Hodys deposed Dr. Benjamin in a videoconference. Hodys drew Dr. Benjamin’s attention to Silva’s deposition testimony, and particularly to his observations of a syringe in Barnes’ car and a track mark on Barnes’ arm. Doctor Benjamin acknowledged that he was aware of these facts. When asked whether it was his opinion that it was "not possible to determine whether [Barnes’ post-accident] impairment was because of drugs, medication, or a brain injury[,]" as he had previously concluded in his report, Dr. Benjamin responded that it could have resulted from "any or all" of these potential causes, but then elaborated that "a combination" was "the most likely explanation." When asked to confirm that he believed that "a combination of drugs and brain injury" was "the most likely explanation" for her impairment, Dr. Benjamin did so, positing that he formed this opinion based on the materials he reviewed, "the knowledge of the symptoms and signs * * * in the record, * * * the medications that she received, and the fact that she had very severe head trauma."

After further questions regarding when Barnes could have consumed controlled substances, as well as objections from Barnes, Dr. Benjamin affirmed that he believed Barnes to have been impaired by controlled substances at the time of the accident. Under direct examination by Barnes, Dr. Benjamin asserted that he not only knew the cause of Barnes’ post-accident impairment, but that it arose from "both trauma from the accident, and possibly some contributing factors from any medications she might have taken prior to driving." Thereafter, on November 30, 2021, Hodys filed motions to assign the case to the continuous jury-trial calendar and to accelerate the matter.

On December 22, 2021, Barnes filed a motion to modify the case scheduling order, specifically requesting "leave to replace her expert, Dr. David Benjamin." Barnes’ counsel represented that, due to ongoing medical issues, Dr. Benjamin was unable to continue serving as an expert witness. In a sworn affidavit attached as an exhibit to the motion, Barnes’ counsel stated that he had communicated with Dr, Benjamin about his expert opinion at least ten times between August 2018 and the deposition, that Dr. Benjamin had "consistently opined that no scientifically reliable conclusions could be made regarding the cause of [Barnes’] post-accident impairment[,]" and that Dr. Benjamin’s deposition testimony on this point was "contrary to all prior discussions" with counsel, Counsel’s affidavit also averred that, on November 12, two days after the deposition, he spoke to Dr. Benjamin over the phone "to inquire about his unexpected ‘change’ of opinion," at which point Dr. Benjamin "disclosed" the following: that Dr. Benjamin "suffers from multiple myeloma, a type of cancer"; that "[h]is condition and the medication he takes for the same, cause him confusion, memory issues, and fatigue"; that his deposition testimony "was inadvertent and directly caused by his medical condition and/or medication"; and, finally, that "[h]e is unable to continue serving as a witness in this case."

Barnes also filed Dr. Benjamin’s report, the deposition transcript, and an email thread between counsel and Dr. Benjamin as exhibits to the motion. The email exchange, dated November 12, contained counsel’s recitation of many of the circumstances asserted in the affidavit, along with a request that Dr, Benjamin "[p]lease confirm the above," Doctor Benjamin’s reply stated that he had "been struggling with multiple myeloma, a type of blood cancer, for approximately [ten] years[,]" that this disease and related medications caused him to experience "lethargy, confusion and memory problems[,]" and that his symptoms had "not been a problem to [his] work in the past, but recently * * * [had] intensified and caused [him] some problems with [his] memory."

In her memorandum of law in support of the motion, Barnes argued that the scheduling order should be modified because: (1) with no. trial date set, there remained "ample...