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Panel denies department request to add witness in Flanagan hearing
Summary
A State of Connecticut Department of Public Health hearing panel denied without prejudice a late request to reopen the department's case to call an additional witness, after the respondent's counsel objected that the notice was unfair.
A three-member panel overseeing a State of Connecticut Department of Public Health hearing about Dennis Flanagan, D.D.S., denied without prejudice a department motion to reopen its case so it could call an additional witness, the panel said during a remote proceeding.
The panel's decision followed objections from respondent counsel Mary Alice Moore Lenhart, who said the late notice of the department's planned witness deprived the defense of fair preparation. "This hearing has is lacking in a certain degree of fairness ... It's trial by ambush," Moore Lenhart said, arguing the department had long identified only one witness and that adding another at the eleventh hour was unprecedented.
Joelle Newton, counsel for the Department of Public Health, said the department had updated the hearing office and that the UAPA does not require advance disclosure of witnesses. "Under the UAPA, there is no requirement in terms of disclosing witnesses," Newton said, and noted the department had provided records for the new witness.
Panel members reviewed the transcript and the parties' filings and debated whether the department had rested its case at a prior session. After deliberation the panel voted to deny the department's request at that time, while leaving open the department's ability to seek permission later. The panel recorded the ruling as "denied without prejudice," permitting the department to move again if it can show good cause later in the proceeding.
The dispute centered on whether Dr. Fisher had been properly noticed as a hearing witness and whether prior subpoenas and a production of a tooth for inspection equated to a subpoena to testify. Respondent counsel said the subpoena served earlier had been limited to production and inspection of a tooth; department counsel said a subpoena for testimony had been issued and that records from Dr. Fisher were already in evidence.
After the panel's ruling the hearing proceeded with the respondent's case in chief. Board members indicated they would permit the department to renew a motion to reopen evidence at a later stage but declined to allow the witness to testify at that point.
The panel did not adopt additional discipline or rulings at the time; it proceeded to take testimony from the respondent and moved later in the session to executive session to review confidential patient records.
