Opinion
No. HHD X04 CV-03-4034596 S
May 6, 2009
MEMORANDUM OF DECISION
The court has considered the plaintiffs' motions to reargue (#253, 254), which are addressed to the court's memorandum of decision, dated February 19, 2009 (#248) (decision). In the decision, the court granted the defendant North River Insurance Company's (North River) motions to preclude plaintiffs' expert witness from testifying at the trial of this case (#233) and for summary judgment (#234).
The court also has considered the plaintiffs' motion to set aside and/or open judgment (#257). In addition, it has considered their motion for permission to amend scheduling order to disclose expert witness (#258) and their motion for permission to disclose expert witness (#255). North River filed objections or oppositions to each motion. Requests for adjudication concerning these five motions were filed on April 22, 2009. For the reasons stated below, the plaintiffs' motions are denied.
The background of this matter is reviewed in the court's decision. This matter is scheduled to commence jury selection on June 15, 2009 and to commence the presentation of evidence on July 6, 2009. Pursuant to the amended scheduling order of July 1, 2008, the parties have completed discovery, including disclosing and deposing experts; and have presented dispositive motions, which the court has adjudicated.
The court first addresses the plaintiffs' motion to reargue the court's decision as to North River's motion to preclude plaintiffs' expert witness from testifying at trial.
I. Motion To Preclude
In its decision, the court granted North River's motion to preclude the plaintiffs' expert witness, Dale P. Faulkner, Esq. (Faulkner), from testifying that the plaintiffs' settlement of the claims made against them in the underlying CNB action was objectively reasonable.
"Where, as in the present case, an insured alleges that an insurer improperly had failed to defend and provide coverage for underlying claims that the insured has settled, the insured has the burden of proving that the claims were within the policy's coverage and that the settlements were reasonable . . . The reasonableness of the settlement, in turn, should be examined under an objective standard . . . Reasonableness is determined according to factors such as, but not limited to, whether there is a significant prospect of an adverse judgment, whether settlement is generally advisable, [whether] the action is taken in good faith, and [whether it is] not excessive in amount." (Citations omitted; footnote omitted; emphasis in original; internal quotation marks omitted.) Metropolitan Life Insurance Co. v. Aetna Casualty and Surety Co., 249 Conn. 36, 55-6, 730 A.2d 51 (1999).
Connecticut Code of Evidence § 7-4(a) provides, "[a]n expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion." The Commentary thereto states, "[w]hether sufficient facts are shown as the foundation for the expert's opinion is a preliminary question to be decided by the trial court. Liskiewicz v. LeBlanc, 5 Conn.App. 136, 141, 497 A.2d 86 (1985) . . ." (Citation omitted.) "The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of the expert's opinion." (Internal quotation marks omitted.) Glaser v. Pullman Comley, LLC, 88 Conn.App. 615, 624, 871 A.2d 392 (2005).
"Where the factual basis of an opinion is challenged the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value . . . That question is one of fact for the trial court." (Citation omitted.) State v. Douglas, 203 Conn. 445, 452-53, 525 A.2d 101 (1987) (citing Liskiewicz v. LeBlanc, supra).
A Second Bite Of The Apple
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple." (Emphasis in original; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94 n. 28, 952 A.2d 1 (2008).
"A motion to reargue is not a device to . . . present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n. 39, 919 A.2d 1002 (2007). "Newly discovered evidence may warrant reconsideration of a court's decision. However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).
"[A]s a general matter, in the absence of the discovery of some new facts or new legal authorities that could not have been presented earlier, the denial of a motion for reargument is not an abuse of the discretion of the trial court." (Emphasis omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 705, 882 A.2d 53 (2005). "[A] motion to reargue cannot be used to correct the deficiencies in a prior motion . . ." Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).
The plaintiffs' presentation in connection with their motion to reargue the court's decision as to the motion to preclude ignores the settled appellate decisional authority, quoted above, concerning motions for reargument. Instead, they cite Marshall v. Marshall, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST FA 05 4007455 (July 24, 2008, Tierney, J.), where the court stated, "[t]here is no statutory or Practice Book authority establishing standards for a motion to reargue." However, the plaintiffs' motion ignores the Marshall court's quotation, in the next paragraph, from Opoku v. Grant, supra, 63 Conn.App. 692-93, where the Appellate Court stated, "[a] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." See Marshall v. Marshall, supra, Superior Court, Docket No. FST FA 05 4007455.
In disregarding settled appellate authority concerning motions for reargument, the plaintiffs have submitted a host of new exhibits, which were available to them when their opposition papers on the motion to preclude were submitted. This extensive presentation does not amount to newly discovered facts. This represents an impermissible effort at a second bite of the apple. The court need not consider these exhibits.
In addition, the plaintiffs have ignored this appellate decisional law by submitting the affidavit of one of the attorneys who represented them in the underlying CNB action, which was discussed in this court's decision. The affidavit obviously could have been prepared and presented when the plaintiffs filed their papers in opposition to the motion to preclude. It does not represent newly discovered evidence and may not be considered by the court. Having received an adverse decision, the plaintiffs may not present evidence which they could have offered prior to the court's adjudication.
B Standard Of Review
The plaintiffs also erroneously assert that the standard of review for a motion for summary judgment applies to North River's motion to preclude plaintiffs' expert witness from testifying. No authority is cited by the plaintiffs for this proposition that an evidentiary ruling is so governed. See plaintiffs' motion to reargue (#254), pp. 5-6. The court explained the applicable law concerning the admissibility of expert testimony in its decision, at pages 5-7, and need not repeat it here. In fact, later in their motion, at page 28, the plaintiffs acknowledge that the court's explanation of the applicable law is correct.
C Formation Of Faulkner's Opinions
The plaintiffs also argue that the court should not have relied on Faulkner's deposition testimony, since it was a discovery deposition and the defendants did not explore the entire factual foundation for his opinions. See plaintiffs' motion to reargue (#254), p. 7. This contention is unpersuasive. The plaintiffs questioned Faulkner at his deposition and could have questioned him further. Also, with their papers in opposition to the motion to preclude, the plaintiffs could have presented an affidavit from Faulkner. None was presented.
The plaintiffs also erroneously assert that the forty-five documents which Faulkner stated he reviewed must now be considered by the court. See plaintiffs' motion to reargue (#254), p. 8; p. 9; n. 4 (stating that some of those documents are included as exhibits to the motion to reargue); pp. 11-12. The bulk of these documents were not submitted by the plaintiffs with their opposition to the motion to preclude. Providing them with the motion to reargue is, again, an impermissible effort at a second bite of the apple.
The plaintiffs also argue that the court erroneously concluded that Faulkner formed his opinions primarily based on his review of the parties' mediation statements. See decision, pp. 8, 9, citing Faulkner's deposition testimony at pages 19, 56-57, 63-64. Faulkner's later general statements (see Faulkner deposition, pp. 148-49), that the basis of the opinions he articulated in the deposition consists in his review of the documents in his box, does not contradict his specific testimony as to the limitations of the bases for his opinions. That Faulkner later reviewed some deposition transcripts (see Faulkner deposition, pp. 104-05) does not contradict his statement that he reached his opinions in this matter before reading any of the depositions. See Faulkner deposition, p. 19.
The limitations to the factual bases of Faulkner's opinions were not restricted only to those on which he initially formed his opinions. Faulkner testified, at pages 52-53 of his deposition, that, as he sat there in June 2008 (the parties agree that the deposition was taken in June 2008, not 2007 as indicated on the cover page; the notary's certificate is date June 16, 2008), he was unaware of any factual support for the Rytmans' claims against the Kofkoffs. Similarly, he was unfamiliar with the expert opinions of either side in the underlying litigation. See Faulkner deposition, pp. 97-98.
D Statements By Samuel Kofkoff
In their motion, the plaintiffs selectively cite a portion of the court's decision and assert that Faulkner's knowledge of whether or not statements made by Samuel Kofkoff to CNB were true is not material. See plaintiffs' motion to reargue (#254), pp. 4, 12. The court declines to consider the newly submitted exhibits referred to in support of this aspect of the plaintiffs' motion, in which they argue that Faulkner did evaluate the competing and conflicting factual positions in determining what constitutes a reasonable settlement amount, because the plaintiffs seek a second bite of the apple.
The plaintiffs note that Faulkner stated in his deposition that Samuel Kofkoff's statements amounted to a slander of business or slander per se. See Faulkner deposition, pp. 38-39. Truth is an absolute defense to slander. See Holbrook v. Casazza, 204 Conn. 336, 359 n. 5, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 699, 98 L.Ed.2d 651 (1988); Watts v. Chittenden, judicial district of Middlesex, Docket No. CV 01 0094889 (September 17, 2002, Aurigemma, J.) ("It is axiomatic that truth is an absolute defense to the tort of slander").
Faulkner testified that he was not aware of any evidence that the statements made by Samuel Kofkoff to CNB were untrue. See Faulkner deposition, pp. 37, 112-14. If Samuel Kofkoff's statements to CNB were true, then a slander claim would be baseless, and no damages could be recovered based thereon. Faulkner did not consider "sufficient facts" to render an opinion regarding an objectively reasonable settlement of the claim that Samuel Kofkoff disparaged, slandered or otherwise defamed the Rytmans at the CNB Advisory Board meeting. See Connecticut Code of Evidence § 7-4(a); Judge Quinn's memorandum of decision, dated April 6, 2005 (concerning count twelve of the underlying complaint in the CNB action). This, along with other aspects of his testimony, cited by the court in its decision, also showed a lack of factual underpinning for his opinion as to the objective reasonableness of the settlement.
E Mutual Release Agreement Dated September 11, 2002
In its decision, page 10, the court stated, "[a]nother example of lack of sufficient factual foundation for Faulkner's opinion concerns the consideration paid by the Kofkoffs to settle the several cases which were pending when the CNB action was resolved through mediation in September 2002." After citing his deposition testimony, pages 128-30, the court concluded that "Faulkner acknowledged that he did not know how much of the consideration which was paid for the mutual release was allocated to the settlement of the claims made in the CNB action. This also demonstrates a lack of factual foundation for his opinion as to the reasonableness of the settlement of that action." See decision, p. 11.
In their motion to reargue, page 17, the plaintiffs reassert arguments concerning the mutual release which the court addressed in its decision and which need not be repeated. Once again, the court need not consider additional exhibits submitted by the plaintiffs as to this aspect of the court's decision, since they are part of a prohibited effort at a second bite of the apple. For example, the plaintiffs have submitted excerpts of Robert Kofkoff's deposition, as well as the aforementioned affidavit of their attorney, which were not submitted previously, and which are not newly discovered evidence.
The plaintiffs wrongly assert that the court erroneously assumed that Kofkoff allocated a portion of the settlement to all the cases referenced in the September 2002 Mutual Release Agreement. Rather, Faulkner testified that he was unfamiliar with the document and did not know what portion, if any, of the $3.15 million was paid to settle the claims made by the Rytmans in the CNB action. See Faulkner deposition, p. 129, lines 21-24. Based in part on such testimony, the court concluded that Faulkner's opinion was not based on sufficient facts.
Further, there is nothing inconsistent in the court's statement, in the decision, page 8, based on Faulkner's testimony, that Faulkner did nothing to go behind the allegations or claims in the mediation papers; and the court's reference to plaintiff Robert Kofkoff's explanation of why he settled the CNB litigation, see decision, page 11, where the court noted that Robert Kofkoff was an interested party. The court did not state that Robert Kofkoff's testimony should be disregarded. The court stated that review of such a deposition provides useful factual information. Simply noting that Robert Kotkoff is an interested party bears on the issue of whether Faulkner's opinion as to the objective reasonableness of the settlement was based on sufficient facts.
See Faulkner deposition, page 56, lines 6-23. When asked what he did to evaluate the strengths of the positions that were asserted in the parties' position papers, he stated, "I did nothing."
F Faulkner Was Unaware That Joseph Fortin Described The CNB Litigation As A Joke
In its decision, page 12, the court noted that another example of the lack of foundation for Faulkner's opinion was his lack of knowledge that plaintiff Joseph Fortin had stated, in the course of the CNB litigation, that the Rytman litigation was "a joke." (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 87 0159941 (May 25, 2001, Hodgson, J.) (part of factual findings of the court). In his deposition testimony, Faulkner was asked if it would have been important to know "if the Fortin's and Kofkoffs believed they did not have exposure in that underlying case;" in response, he stated that, "[i]f they had expressed that, yes, it would be." See Faulkner deposition, pp. 94-95.
In this context, it is apparent that the factual finding referred not to a joke as in something said or done to provoke laughter, but to its other commonly accepted meaning, something lacking in substance; not to be taken seriously; a trivial matter. See Webster's Third New International Dictionary, p. 1220.
Clearly, Judge Hodgson's factual finding is evidence of such an expression by plaintiff Joseph Fortin. According to Faulkner's own testimony, such evidence was important to know.
G
Unfamiliarity With Opinions of Experts In Underlying Litigation
The plaintiffs argue that the court's statement in its decision, page 12, that Faulkner "was unfamiliar with whether the parties to the underlying litigation had retained experts or what their opinions might have been," citing Faulkner's deposition testimony at pages 97-98, is inaccurate. The court is unpersuaded. Faulkner stated that he was not sure that the parties had retained experts in the underlying litigation. He stated that he thought they had, and that he was searching his memory, and repeated that he was not sure. He stated that he did not recall reviewing expert opinions and that he had not reviewed the basis for such opinions. He also stated that he never considered whether or not any of these opinions would withstand a Porter challenge. See Faulkner deposition, pp. 97-98. Thus, the court's summary in its decision was accurate.
As in previous portions of their argument, the plaintiffs again refer to and submit other evidence which is not newly discovered evidence and which may not be considered, since it is part of an effort at a second bite of the apple. The plaintiffs then argue that, since Faulkner reviewed the parties' mediation papers, "Faulkner was aware that the parties had disclosed experts in the CNB action and developed a general knowledge of the subject matter of their expected testimony." See plaintiffs' motion to reargue (#254), p. 26. This argument is contradicted by Faulkner's deposition testimony at pages 97-98, described above.
H Kofkoff Mediation Statements
The plaintiffs assert that they disagree with the court's finding, in the decision, page 13, that the Kofkoff mediation statements "are largely argumentative presentations, which contain little by way of objective evaluation of the strengths and weaknesses of their position in the litigation." Yet, in their motion to reargue (#254), page 27, the plaintiffs "acknowledge that the mediation papers submitted by all the parties in the CNB action are advocacy pieces."
As noted above, Faulkner stated that he did nothing to evaluate the strengths of the positions that were asserted in the parties' mediation statements. He stated that he did not go behind the allegations or the claims made in those papers. See Faulkner deposition, p. 56.
The plaintiffs also contend that Faulkner reviewed "numerous financial documents from the CNB action" concerning the rise and fall of the Rytman businesses. See motion to reargue (#254), p. 28. These documents are identified by a reference to a footnote which lists "45 documents." See motion to reargue (#254), pages 9 n. 4, 28. As the court stated above, the bulk of these documents were not submitted by the plaintiffs with their opposition to the motion to preclude. Providing them with the motion to reargue is, again, an impermissible effort at a second bite of the apple.
Further, the plaintiffs never identify the facts contained in the "numerous financial documents from the CNB action" upon which Faulkner purportedly relied. As the court previously found, without factual underpinning, the plaintiffs have not met the burden of showing that Faulkner's expert opinion is based on "sufficient facts." See Connecticut Code of Evidence § 7-4(a).
I
Factual Bases For North River's Expert's Opinions Are Immaterial
In its decision, the court stated that the plaintiffs' arguments concerning the factual bases upon which North River's designated expert, Joel Rottner, Esq., premised his opinions were unpersuasive. The court stated, "[w]hether or not Rottner's opinions are based on sufficient facts is not material to the question of whether Faulkner's testimony is admissible." See decision, page 13.
In their motion to reargue (#254), the plaintiffs essentially repeat the same arguments concerning Rottner which they raised in opposition to the motion to preclude. The plaintiffs state, at page 33, "[w]hether North River's expert's opinions are based on sufficient facts is irrelevant, but that expert's opinions about what constitutes a reliable means to determine the reasonableness of the plaintiffs' settlement amount in the CNB action when faced with the prospect of searching through 130 boxes of documents is relevant."
The court is not required to compare Rottner's methodology to the factual bases for Faulkner's opinions in order to determine the admissibility of Faulkner's opinions. Faulkner's, not Rottner's, testimony was at issue in connection with the motion to preclude.
J Evaluation Of Strengths Of Positions In Mediation Statements
Above, at page 9, the court cited Faulkner's testimony, wherein he stated that he did nothing to evaluate the strengths of the positions advanced in the mediation statements. While the plaintiffs argue that the record belies this conclusion, it is based on Faulkner's own testimony. See Faulkner deposition, p. 56. Once again, as to this part of their motion, the plaintiffs have submitted exhibits which are part of an effort at a second bite of the apple.
While again, the plaintiffs list documents which Faulkner reviewed, they do not identify what facts such documents contain and upon which Faulkner based his opinion, in order to demonstrate, as required by Connecticut Code of Evidence § 7-4(a), that "sufficient facts are shown as the foundation for expert's opinion."
The plaintiffs also argue that this case presents facts which are unlike those in the will contest in Maroncelli v. Starkweather, 104 Conn. 419, 424, 133 A. 209 (1926). This court did not cite Maroncelli in its decision, and did not impliedly analogize the facts there to those here, as suggested by the plaintiffs. Maroncelli was cited by the Supreme Court in State v. Asherman, 193 Conn. 695, 717, 478 A.2d 227 (1984).
In their motion for permission to amend scheduling order (#258), page 2, the plaintiffs state that they incorporate that motion into their argument on their motions to reargue. The court addresses the motion for permission below, and incorporates that discussion here by reference.
II. Motion For Summary Judgment
As to North River's motion for summary judgment, the court concluded that the plaintiffs were required to present expert evidence to the jury in order for it to determine whether the settlement of the underlying litigation for $3.15 million was objectively reasonable.
"In determining whether a settlement is reasonable, the jury is entitled to consider not only the damage sustained by the injured party, but also the likelihood that the injured party would have succeeded in establishing the insured's liability. In order to recover the amount of the settlement from the insurer, the insured need not establish actual liability to the party with whom it has settled so long as . . . a potential liability on the facts known to the [insured is] shown to exist, culminating in a settlement in an amount reasonable in view of the size of possible recovery and degree of probability of [a] claimant's success against the [insured]." (Emphasis in original; internal quotation marks omitted.) Black v. Goodwin, Loomis and Britton, Inc., 239 Conn. 144, 160, 681 A.2d 293 (1996). "The test as to whether the settlement is reasonable is what a reasonably prudent person in the position of the [d]efendant would have settled for considering the liability and damage aspects of the [p]laintiff's claim, as well as the risk of going to trial." (Internal quotation marks omitted.) Id., 161 n. 17 (quoting jury charge).
In its decision, the court determined that a lay jury would not have the knowledge, training, or experience to evaluate the objective reasonableness of the settlement here in view of the complexity of the underlying case, described in the decision as the "CNB action." The Supreme Court, in an earlier decision concerning the CNB action, noted "the complexity of the case . . ." Connecticut National Bank v. Rytman, 241 Conn. 24, 51, 694 A.2d 1246 (1997).
The jury would need the assistance of an expert who had reviewed and considered the extensive, complex underlying litigation, including evidence and other information adduced from discovery; considered the legal theories underlying the claims and defenses, and the standards of proof; and then, based on his or her expertise, formed an opinion as to what would be an objectively reasonable settlement. Assessment of the risk of going to trial in that complex litigation requires expert testimony.
With Faulkner's testimony precluded, the plaintiffs lacked expert testimony as to the objective reasonableness of the settlement, which is an essential element of their case. In essence, the plaintiffs' argument in support of their motion to reargue, that a lay jury does not need expert testimony here, revisits the same arguments which the court previously rejected and amounts to seeking an impermissible opportunity at a second bite of the apple.
The plaintiffs also cite Faulkner's deposition testimony in support of their motion to reargue the court's adjudication of the motion for summary judgment. See motion to reargue (#253), pp. 5-6 n. 1. The court has addressed the plaintiffs' arguments concerning the factual foundation for Faulkner's opinion above, in part I., concerning the motion to preclude.
Rather than point to some controlling authority which was overlooked by the court, the plaintiffs cite authority which was mentioned by the court in its decision. In addition, the plaintiffs misread the decision. See plaintiffs' motion to reargue (#253), pp. 14-15. The court did not rely on Black v. Goodwin, Loomis and Britton, Inc., supra, 239 Conn. 144, to conclude that expert testimony was required here. Rather, it cited Black in connection with the plaintiffs' burden to prove that the settlement was "in an amount reasonable in view of the size of possible recovery and degree of probability of [a] claimant's success against the [insured]." (Emphasis in original; internal quotation marks omitted.) Id., 239 Conn. 160. See decision, pp. 15-16, 20. Likewise in referring to Black again, the court cited the Supreme Court's footnote, see id., 239 Conn. 161 n. 17. There, the court again was referring to the plaintiffs' burden of proof: "The test as to whether the settlement is reasonable is what a reasonably prudent person in the position of the [d]efendant would have settled for considering the liability and damage aspects of the [p]laintiff's claim, as well as the risk of going to trial." (Internal quotation marks omitted.) Id. (quoting jury charge). See decision, p. 20. The court also cited Connecticut Code of Evidence § 7-3(a), which states that "an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue." The plaintiffs' argument ignores this citation.
Similarly, the plaintiffs refer to St. Onge, Stewart, Johnson and Reens, LLC v. Media Group, Inc., 84 Conn.App. 88, 96, 851 A.2d 1242, cert. denied, 271 Conn. 918, 859 A.2d 570 (2004) (reversal of trial court's denial of directed verdict where plaintiff did not present expert evidence). They have not shown that the court misinterpreted that Appellate Court decision.
Likewise, the plaintiffs have not shown that the court misunderstood plaintiff Robert Kofkoff's deposition testimony, which was cited in the decision. That testimony was cited to further illustrate the complexity of the underlying litigation. See decision, pp. 18-20.
In addition, the plaintiffs have not shown how the court's decision "included inconsistencies." See motion to reargue (#253), p. 2. The plaintiffs argue that although the court "chose to minimize [Robert Kofkoff's] testimony as being from an interested party when deciding North River's Motion to Preclude, it now focuses and relies on this testimony to support its conclusion that the facts of the underlying case are so complex that the issues which a jury would have to confront go well beyond the ordinary knowledge of lay juries." See motion to reargue (#253), p. 8.
In its decision concerning the motion to preclude, page 11, an evidentiary ruling concerning the lack of factual foundation for Faulkner's expert opinion about the objective reasonableness of the settlement of the underlying CNB action, the court noted that, while plaintiff Robert Kofkoff's deposition provided useful factual information, he is an interested party. In ruling on the motion for summary judgment, and citing Kofkoff's deposition testimony to further illustrate the complexity of the underlying litigation, the court was referring to a statement by a party opponent. See Connecticut Code of Evidence 8-3(1)(A) (party's own statement). There is no inconsistency.
Finally, the plaintiffs argue that they belatedly should be permitted to disclose Robert Kofkoff as an expert witness and use his testimony at trial. The court addresses this issue below concerning the plaintiffs' motions for permission to disclose Kofkoff as an expert (#255) and their motion to amend the scheduling order (#258). The court's discussion therein is incorporated by reference.
III. CT Page 7689
Motions To Amend Scheduling Order, Disclose Experts, and Set Aside and/orOpen Judgment
The plaintiffs, citing Practice Book § 13-4(g)(4), move to amend the scheduling order to permit them to amend their expert disclosure as to Faulkner and to disclose Robert Kofkoff as an expert. In their motion to set aside and/or open judgment, they assert that if Faulkner and/or Kofkoff testify as an expert witness, they will satisfy the court's conclusion that expert testimony is required to prove the reasonableness of the settlement of the CNB action, and the court would be required to set aside and/or open the judgment it entered against the plaintiffs on February 19, 2009.
Practice Book § 13-4(g)(4) provides, "Unless otherwise ordered by the judicial authority the following schedule shall govern the expert discovery required under subsection (b), (c), (d) and (e) of this section. (1) Within one hundred and twenty days after the return date of any civil action, or at such other time as the court may order, the parties shall submit to the court for its approval a proposed `Schedule For Expert Discovery' which, upon approval by the court, shall govern the timing of expert discovery in the case. The deadlines proposed by the parties shall be realistic and reasonable, taking into account the nature and relative complexity of the case, the need for predicate discovery, and the estimated time until the case may be exposed for trial. If the parties are unable to agree on discovery deadlines, they shall so indicate on the proposed Schedule for Expert Discovery, in which event the court shall convene a scheduling conference to set those deadlines . . .
(4) Any request for modification of the approved Schedule For Expert Discovery or of any other time limitation under this section shall be made by motion stating the reasons therefore, and shall be granted if (A) agreed upon by the parties and will not interfere with the trial date; or (B)(i) the requested modification will not cause undue prejudice to any other party; (ii) the requested modification will not cause undue interference with the trial schedule in the case; and (iii) the need for the requested modification was not caused by bad faith delay of disclosure by the party seeking the modification."
The plaintiffs argue that if the court denies their request to modify the scheduling order, to permit their newly proposed expert disclosures, the consequence will be to enter judgment against them and deny them a trial on the merits. They assert that "[s]uch a draconian result is most certainly not proportional to any alleged non-compliance at issue concerning the plaintiffs' instant request to disclose Dale Faulkner as an expert witness. Practice Book § 13-4(h)." See motion for permission to amend scheduling order (#258), p. 4. The same argument is made in connection with the proposed disclosure of Robert Kofkoff as an expert.
Practice Book § 13-4(h) provides, "A judicial authority may, after a hearing, impose sanctions on a party for failure to comply with the requirements of this section. An order precluding the testimony of an expert witness may be entered only upon a finding that (1) the sanction of preclusion, including any consequence thereof on the sanctioned party's ability to prosecute or defend the case, is proportional to the noncompliance at issue, and (2) the noncompliance at issue cannot adequately be addressed by a less severe sanction or combination of sanctions."
A Additional Procedural Background
By motion dated April 29, 2008 (#223), the parties, including the plaintiffs, moved the court to issue an amended scheduling order. The amended scheduling order was issued on July 1, 2008, in order to set forth an orderly process for the management of the case, including the disclosure of experts, the deadlines for completing the depositions of experts, the deadlines for the filing of dispositive motions, the due date for the filing of responses to such motions, a deadline for replies thereto, and the scheduling of oral argument. This amended scheduling order was crafted, in part, to afford the court the requisite 120 days to rule on dispositive motions in advance of jury selection.
When the amended scheduling order was issued in July 2008, the deadline for the plaintiffs to disclose their experts already had passed, as had the date by which the depositions of those experts were to be completed. According to the amended scheduling order, the plaintiffs were required to disclose their expert witnesses more than one year ago, by April 15, 2008; the defendants were required to disclose their experts by June 30, 2008. Depositions of plaintiffs' experts were to be completed by May 30, 2008; depositions of defendants' experts were to be completed by July 31, 2008. The deadline for the filing of dispositive motions was October 1, 2008.
As discussed above, Faulkner was deposed. North River subsequently filed its motion to preclude and motion for summary judgment. The plaintiffs filed objections and North River filed replies. On January 7, 2009, the court heard over four hours of oral argument on those motions and co-defendant Hartford Underwriters Insurance Company's motion for summary judgment.
On February 19, 2009, the court issued two memoranda of decisions on these motions, including the decision discussed above. Over one month later, on March 23 and 24, 2009, the plaintiffs filed their motions seeking to amend the scheduling order, to amend Faulkner's expert disclosure, to disclose Robert Kofkoff as an expert, and to set aside and/or open judgment.
B Discussion
"A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion." Reiner, Reiner Bendett, P.C v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006). As to North River, only if the judgment entered in its favor were vacated could the court consider allowing an amendment of the scheduling order and further expert disclosures.
The court's decision on the motion to preclude was an evidentiary ruling concerning the lack of factual foundation for Faulkner's expert opinion about the objective reasonableness of the settlement of the underlying CNB action. "The preclusion of testimony by a properly disclosed expert witness is an evidentiary ruling." (Footnote omitted.) Glaser v. Pullman Comley, LLC, 88 Conn.App. 615, 622, 871 A.2d 392 (2005); Farrell v. Bass, 90 Conn.App. 804, 810, 879 A.2d 516 (2005) (same). The court's decision was not a ruling imposing a sanction under Practice Book § 13-4(h), quoted above, which governs "sanctions on a party for failure to comply with the requirements of this section."
In now considering the plaintiffs' motions to amend the scheduling order, to disclose experts, and set aside and/or open judgment, the court is not deciding a motion to preclude under § 13-4(h) and need not consider imposing sanctions. As the Commentary thereto notes, "[s]ubsection (h) sets forth sanctions that may be imposed on a party by the judicial authority for failure to comply with the requirements set out in this section." Practice Book Section 13-4(h) is not implicated.
The procedures provided for in Practice Book § 13-4(g) also are not applicable here. That section provides for the submission, unless otherwise ordered, of a proposed "Schedule For Expert Discovery" within 120 days of the return day. Here, the return day was years ago, in 2003, long before the entry of the July 1, 2008 amended scheduling order, which was entered before § 13-4(g)'s effective date, January 1, 2009.
The plaintiffs have not presented a legally justifiable basis for setting aside or vacating the judgment, and for being permitted to revise their expert disclosure of Faulkner and newly disclose Robert Kofkoff as an expert, after the motions to preclude and for summary judgment were fully litigated by the parties and adjudicated by the court. The plaintiffs could have disclosed Robert Kofkoff as an expert by the April 15, 2008 expert disclosure deadline. Their request to be permitted to disclose expert testimony again, after the court's adjudications of those motions, is yet another effort at an impermissible second bite of the apple.
The court is unpersuaded by the plaintiffs' reference to the fact that Judge Quinn's April 6, 2005 memorandum of decision granted the plaintiffs' motions for partial summary judgment. There, the court granted partial summary judgment in favor of the plaintiffs, against defendant Hartford Underwriters Insurance Company and North River, determining that the insurers had duties to defend. That decision did not adjudicate issues related to the plaintiffs' burden to prove that the settlement of the underlying CNB action was objectively reasonable.
Even if Practice Book § 13-4(g) were applicable here, the plaintiffs have not shown that the requested modification will not cause undue prejudice to any other party; and that the requested modification will not cause undue interference with the trial schedule in the case. See Practice Book § 13-4(g)(4)(B)(i) and (ii). Based on the plaintiffs' disclosure of Faulkner's proposed expert testimony, North River noticed his deposition, prepared therefor, deposed him, prepared the motion to preclude and the motion for summary judgment, replied to the plaintiffs' opposing papers, and argued the motions. Considerable attorneys' time and effort were expended, based on the court-ordered schedule.
There is no legal justification for permitting the plaintiffs to turn back the clock and to start again in another effort to attempt to provide expert testimony which has a sufficient factual basis. If the court permitted that now, more than a year after the deadline for disclosing plaintiffs' experts, the dispositive motion process followed by the parties and the court would be rendered meaningless. Likewise, long-ago completed discovery would be reopened just before trial. Having fully litigated and prevailed on the motion to preclude and the motion for summary judgment, North River would be unduly prejudiced if the court were to ignore its own adjudications and afford the plaintiffs another opportunity to provide expert testimony.
In addition, without question, altering the previous court-ordered schedule without justification would also cause undue interference with the trial schedule in the case. The Appellate Court's recent decision in McVerry v. Charash, 96 Conn.App. 589, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006), provides a useful illustration.
In McVerry, as here, the trial court issued a scheduling order calling for the timely disclosure of expert witnesses, and a date for the commencement of jury selection. See id., 592. The defendant moved to preclude the plaintiff from producing any expert testimony at trial, since the plaintiff was then eleven months past the court's original deadline to disclose experts, ten months past the extended deadline which the plaintiff requested, and the case was only four months from the scheduled trial date. See id., 592-93. The trial court granted the motion to preclude, and, subsequently, because the plaintiff could not establish a case of medical malpractice without expert testimony, granted the defendant's motion for summary judgment. See id., 593-4.
In McVerry, on appeal, as here, the plaintiff argued that late disclosure of expert testimony left the defendant sufficient time to depose the plaintiff's experts prior to trial. See id., 595. In upholding the trial court's finding that the defendant would be unduly prejudiced by the delay in disclosure, the Appellate Court stated that the trial court's "scheduling order contemplated that the defendant would have fifteen months between depositions and trial, not the thirteen weeks that would have remained . . . In other cases, we have upheld sanctions where expert disclosures were delayed until weeks before a trial was to begin." Id., 595.
In addition, the Appellate Court found that "it was reasonable for the court to find that further delay would have resulted in undue interference with the orderly progress of this 2001 case to trial." Id., 596. The same is true here of this 2003 case. If the court allowed new expert disclosures for Faulkner and Robert Kofkoff, the defendants would then have to prepare for their depositions and depose them. New motions to preclude would likely ensue, as would another summary judgment round, with briefing, argument, and time for the court to adjudicate the new motions. There is insufficient time remaining before trial to accomplish these new steps.
In explaining the principle which guided the appeal in McVerry, the Appellate Court stated, "[o]vercrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based on the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." (Internal quotation marks omitted.) McVerry v. Charash, supra, 96 Conn.App. 600.
Further, even if Practice Book § 13-4(h) were applicable, the sanction of preclusion would be proportional to the noncompliance with the court's scheduling order. See McVerry v. Charash, supra, 96 Conn.App. 589. During the course of this litigation, the plaintiffs had a full and lengthy opportunity to conduct discovery and to disclose experts. It would unduly prejudice North River if the court were to allow the plaintiffs to take advantage of North River's exposure of its motions to preclude and summary judgment arguments, which the plaintiffs had an ample and fair opportunity to oppose, and, after judgment was rendered, permit the plaintiffs to reopen expert discovery, well after the expiration of the clearly established deadlines therefor. To do so would afford the plaintiff an unfair opportunity to attempt to avoid the summary judgment process. See Randolph v. Norwalk Hospital Association, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0198393 (September 26, 2006, Adams, J.), where the court concluded that an order of preclusion was a proportional remedy because other remedies, such as no preclusion, or a trial continuance to allow further discovery, "would prejudice the defendant's rights or impair the court's ability to control its docket and schedule the expeditious and fair resolution of cases."
Here, permitting the reopening of expert discovery would place North River at an unfair disadvantage after filing its motions to preclude and for summary judgment, and after judgment was rendered. Preclusion remains a proportional remedy in these circumstances.
In addition, the court is unpersuaded by the plaintiffs' reference to their assertion, at oral argument of the motions to preclude and for summary judgment, that the motion to preclude was premature. See plaintiffs' motion to amend scheduling order (#258), p. 5 n. 1. In referring thereto, they contend that, in light of Practice Book § 13-4(h), the court should have provided the plaintiffs with the opportunity to cure any alleged defects which the court found in Faulkner's testimony. This contention is not well founded.
At oral argument on the motions to preclude and for summary judgment, the plaintiffs asserted that the motion to preclude was premature in that the court allegedly would need a better understanding of the facts on which Faulkner relied to render his opinion and the issue ought to be considered at trial. See transcript of January 7, 2009 oral argument, pp. 88, 97-8. At oral argument, the plaintiffs made no request for an opportunity to amend Faulkner's expert disclosure and did not raise Practice Book § 13-4(h), which had been published in the Connecticut Law Journal on July 22, 2008 and was effective as of January 1, 2009. Raising this argument now is another impermissible attempt at a second bite of the apple. In addition, since this argument was never made in advance of the court's decision, there was no reason for the court to consider it.
CONCLUSION
For the reasons stated above, the plaintiffs' motions to reargue, to set aside and/or open judgment, to amend the scheduling order to disclose expert witness, and for permission to disclose expert witness, are denied. It is so ordered.