Opinion
No. CV01-0165530S
July 7, 2004
MEMORANDUM OF DECISION RE MOTION TO PRECLUDE EXPERT TESTIMONY (#116) AND MOTION TO AMEND SCHEDULING ORDER (#117)
PRESENT MOTIONS
On May 18, 2004, the plaintiff filed a motion to preclude expert testimony at the time of trial, alleging that the plaintiff has failed to fully and fairly comply with the rules of discovery and the requirements of Practice Book 13-4(4). On May 24, 2004, the plaintiff filed a motion to amend the latest scheduling order, to allow the plaintiff to disclose his expert witnesses by June 15, 2004. Oral arguments on these two motions were heard June 28, 2004. This civil action is over three years old and relates to a medical event that occurred over 5 years ago. No expert was disclosed by the plaintiff until a week prior to the scheduled hearing date for the motion to preclude expert testimony; a week prior to the hearing date on the motion some five experts, located in Massachusetts, New York and Connecticut, were disclosed by the plaintiff.
PROCEDURAL HISTORY
The following procedural history, gleaned from the court file, is the foundation of the court's rulings on these two motions.
On March 28, 1999, allegedly as a result of the defendant's failure to diagnose and treat an allergic drug reaction experienced by the decedent beginning on March 14, 1999, the decedent died. The complaint was filed on May 18, 2001, by the firm of Nixon and Mulhall. Current plaintiff's counsel ("plaintiff's counsel") filed an appearance "in addition to" prior plaintiff's counsel on September 20, 2001. On September 9, 2002, defense filed a motion for nonsuit stating that discovery served on plaintiff on July 20, 2001 had not been answered, despite an extension of time to respond having been granted to September 20, 2001. On September 12, 2002, plaintiff's counsel filed an appearance in lieu of prior counsel. Also on September 12, 2002, plaintiff's counsel requested another extension of time to make compliance with the discovery served on July 20, 2001, and plaintiff's counsel represented that discovery compliance would be achieved by September 27, 2002. Plaintiff's counsel apparently received the extension, until September 27, 2002, to comply with July 20, 2001 discovery. On or about November 6, 2002, the plaintiff, the Administrator of the decedent's estate, was deposed at his counsel's office. On April 1, 2003, at a status conference, the presiding judge ordered the plaintiff to disclose its expert witnesses by June 15, 2003. In that the disclosure was not made as ordered, on June 25, 2003, the defendant filed a motion for nonsuit "for failure to provide expert disclosure in compliance with the Court's scheduling order." On July 1, 2003, plaintiff's counsel again moved for an extension of time, until July 31, 2003, to provide expert disclosure. This extension also was granted. On May 18, 2004, defendant again moved to preclude expert testimony because "plaintiff has failed to disclose any experts despite the fact that he is now ten months past the deadline and only four months away from the trial date." On May 24, 2004, plaintiff filed a Motion to Amend the presiding judge's April 1, 2003 Scheduling Order, stating, "as this case is scheduled for trial on September 15, 2004, disclosure by June 15, 2004 would be a reasonable time prior to trial [to disclose expert witnesses] and will not prejudice the defendant."
APPLICABLE LAW
The Practice Book requires that the disclosure of expert witnesses be accomplished "within a reasonable tine prior to trial." Practice Book § 13-4(4) provides that, in general terms, if a party fails timely to disclose the name and substance of the opinion of an expert whom the party "expect[s] to call [as] an expert witness at trial," the court may, "upon motion preclude such testimony . . ." Millbrook Owners Assn. v. Hamilton Standard, 257 Conn. 1, 11, 776 A.2d 1115 (2001).
The appellate courts of Connecticut have mandated that, "careful attention must be paid to the prompt and orderly handling of discovery. Trial courts should not countenance unnecessary delays in discovery and should unhesitatingly impose sanctions proportionate to the circumstances." Osborne v. Osborne, 2 Conn. App. 635, 637 (1984); see also Biro v. Hill, 231 Conn. 462 (1994) (affirming the granting of a non-suit based on plaintiff's failure to comply with three previously entered deadlines for compliance), and Elliss v. Ronning, 11 Conn. App. 662 (1987) (affirming entry of non-suit based on plaintiff's failure to complete interrogatories).
Pursuant to Practice Book Section 13-4(4), in order for the court to impose the sanction of preclusion, there must be a "motion to preclude such testimony," and the court must determine "that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party . . ." Millbrook Owners Assn. at 12.
In addition to the three factors found in Practice Book § 13-4(4), the Supreme Court, in its Millbrook decision, has set forth the standard for precluding expert testimony, pursuant to either Practice Book § 13-14 or the court's inherent power to impose reasonable sanctions. If utilizing § 13-14 or inherent powers, there are three requirements that must be met, for a trial court's order of sanctions for a violation of a discovery order to withstand scrutiny. The factors required to be considered by the court include: (1) whether noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party's case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct. Millbrook at 15, citing Yale New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984). While the pending motion in this case, #116, was brought pursuant to 13-4(4), this court is mindful of the Millbrook factors.
APPLICATION OF THE LAW TO THE FACTS OF THIS CASE
The order to be complied with was reasonably clear. The plaintiff does not argue, either in his memorandum of law, or at oral argument, that the presiding judge's order, requiring the plaintiff to disclose his experts by June 15, 2003, was in any way unclear. Even assuming that the plaintiff is suggesting that, in light of the October 2003 untimely death of the associate working on this file, some leeway should have been given, there is no persuasive explanation for waiting some twelve months after the disclosure deadline, and eight months after the death of the associate, to disclose any of the plaintiff's experts.
Second, the record establishes that the presiding judges' orders to disclose experts were in fact violated.
Third, the sanction imposed must be proportional to the violation. "A trial court's decision on whether to impose the sanction of excluding the testimony of a party's expert rests within the court's sound discretion." Pool v. Bell, 209 Conn. 536, 541 (1989); Barrows v. J.C. Penney Co., 58 Conn. App. 225, 231 (2000). In exercising such discretion the court must be mindful that our "discovery rules are designed to facilitate trial proceedings and to make a trial less a game of blind-man's bluff and more a fair contest with the basic issues of fact disclosed to the fullest practical extent." Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 519 (1986), quoting United States v. Procter Gamble, 356 U.S. 677, 682 (1958).
The defendant argues that the late disclosure has caused him undue prejudice. It is the defendant's contention that "as a result of plaintiff's decision to ignore the rules of practice and [ignore] the Court's scheduling order defendant has been prevented from proceeding with the depositions of plaintiff's experts and has been prevented from learning the exact basis of the claims against Dr. Charash. Plaintiff's failure to disclose his experts . . . has also prevented defendant from filing any possible dispositive motions based upon plaintiff's expert's potential testimony . . . should plaintiff now attempt to disclose his experts in light of this motion, defendant will be severely prejudiced in that he will be forced to depose these experts in a far shorter period of time that would have otherwise been available had plaintiff made a timely expert disclosure . . . and all of this must be accomplished during the summer months when scheduling such matters is next to impossible."
The plaintiff claims that preclusion is inappropriate for two reasons. First, the defendant asserts that its several experts are available for a deposition within thirty days. Second, the plaintiff offers that, should the remaining time prior to the September 15, 2004 trial date "prove to be insufficient for defendant to complete depositions of plain-tiff's experts and produce its own experts for depositions, the defendant may request a continuance in the trial date, which plaintiff would not oppose."
It is the court's conclusion that plaintiff's reasons do not constitute good cause for the significantly delayed disclosure. Plaintiff was served with interrogatories, requesting that he identify his experts, in July 2001. The factual record of this case, set forth above, demonstrates that time and again the court has demonstrated leniency towards the plaintiff, repeatedly countenancing delays in its disclosure of experts, and, in general, overlooking the plaintiff's failure to adhere to the court's orders for an orderly progression of this civil suit to trial on the merits. This consideration was afforded to the plaintiff despite repeated written objections of the defendant. That record of judicial leniency is most recently reflected in both: the court's June 2003 denial of defendant's [third] motion for nonsuit, and the court's further extending the plaintiff an additional 45 days for disclosure of experts. This case has been pending for over three years, it is scheduled for trial on September 15, 2004 and until late June 2004, the plaintiff had disclosed no expert witnesses.
In sum, the court finds that the late disclosure of the plaintiff's experts will cause undue prejudice to the defendant and there are no reasons advanced by the plaintiff constituting good cause for either: the delayed disclosure of experts or further delaying trial of this matter. The motion to preclude the expert testimony is granted. It follows that the Motion to Amend the Scheduling Order is denied.
SO ORDERED.
ALVORD, J.