Opinion
No. FST CV08-5007501S
March 14, 2011
Memorandum of Decision on Outstanding Motions
This is a personal injury action in which the plaintiffs claim to suffer from the effects of mold contamination in their residence which allegedly migrated into the unit from an adjoining vacant unit. The defendants include the plaintiffs' landlords, Ronald and Gloria Thomas, the owner (by foreclosure) of the adjoining unit, GMAC Mortgage, LLC ("GMAC"), the condominium owners' association, Birchwood Condominium Association, Inc.,(the "Association") and the property manager, REI Property Asset Management, Inc. ("REI"). The motions argued at the short calendar of November 22, 2010 and now before the court include GMAC's motion to preclude plaintiffs from disclosing any experts (No. 190), and plaintiffs' objection thereto (No. 204); GMAC's objections to the disclosure of expert witnesses by the plaintiffs (Nos. 195/196, 205/206) which are incorporated into objections filed by the Association (Nos. 203 and 207), and by REI (No. 213); GMAC's Motion for Protective Order (No. 217) as to plaintiff's notice of deposition of a GMAC representative; and GMAC's Objection to Documents Requested by the Plaintiffs Pursuant to Their Notice of Deposition (No. 218). The common thread to all of those motions/objections is that defendants oppose disclosures of expert witnesses by the plaintiffs and noticing of a deposition with production of documents by the plaintiffs on the ground that those actions have been taken beyond the deadlines of the Scheduling Order (No. 159) entered by the court (Adams, J.) on December 16, 2009. The relevant deadlines of the scheduling order include completion of written discovery requests and responses by April 30, 2010, disclosure of plaintiff's experts and completion of depositions of defendants by June 30, 2010, and a trial assignment date of March 16, 2011 (which has been extended by one week by the presiding judge, civil (Mintz, J.) pending the resolution of these pending motions). The gist of defendants' positions is that the plaintiffs have failed to comply with the June 30, 2010 deadlines of the scheduling order by noticing experts on or about October 13, and October 27, 2010, and by noticing on October 29, 2010 the deposition of defendant GMAC (with production of documents) (all within the fourth month following the deadline, and four and one-half to five months before the assigned trial date). The plaintiffs' position with regard to the disclosure of experts is that the defendants are not prejudiced by the formal disclosure of experts after the scheduling order deadline because plaintiffs provided comprehensive discovery to defendants in response to interrogatories and production requests in July of 2008 including the reports of the experts later disclosed, and, with regard to the notice of the GMAC deposition because plaintiffs' notice of deposition on October 29 simply mirrored a notice of deposition/production request filed earlier by the Thomas defendants in connection with their cross claim against GMAC. Plaintiff filed its own notice of deposition only after the deposition noticed by the Thomas defendants failed to go forward, claiming that it needed the deposition in order to oppose GMAC's September 10, 2010 motion for summary judgment on the complaint insofar as it alleges liability of GMAC (No. 174 — still pending).
The Scheduling Order was extended on September 27, 2010 on the motion of the Thomas defendants (No. 185) to enlarge the deadlines for disclosure of defendants' experts and completion of the depositions of defendants' experts, pending resolution of these outstanding motions regarding the noticing of plaintiffs' experts.
All of these pending motions/objections were filed within the six-month period prior to the assigned trial date and would therefore fall within the ambit of the statewide Discovery and Deposition Dispute Order Revised October 26, 2010 which requires such motions to be heard by the presiding judge or his designee. In this case the presiding judge has met with counsel in an unsuccessful attempt to resolve these matters, but then designated the undersigned to hear the motions/objections on short calendar.
On October 25, 2010, this court marked GMAC's motion for summary judgment "off" the short calendar so as to give the plaintiffs an opportunity to notice and conduct the deposition of GMAC'S designated representative Scott Zeiss.
Since this case was commenced prior to December 31, 2008 the provision of Practice Book § 13-4 as in effect on that date governs. That rule provides that " . . . any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial." The defendant's deadline to similarly disclose experts is "within a reasonable time from the date the plaintiff disclosed experts." If such disclosure is not made within such a reasonable time, " . . . such expert shall not testify if, on motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of the trial of the case; or (C) involved a bad faith delay of disclosure by the moving party." GMAC cites McVerry v. Charash, 96 Conn.App., 589, cert. denied, 280 Conn. 934 (2006) and Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 47 (2003) in which experts were precluded from testifying for the plaintiffs because they were not disclosed by a court-ordered deadline. In McVerry the disclosure was made eleven months past the court's original deadline and ten months past an extended deadline, some four months before the scheduled trial. In Advanced Financial Services, the scheduling order provided for disclosure of defense experts by December 23, 2000. The court found that disclosure of the true nature of the experts' opinions was not made until April 6, 2001, just four days before the start of trial. In each case the preclusion was upheld as a violation of Practice Book § 13-4. But our caselaw does not always support a mechanistic approach to the rules of expert disclosure:
In light of the purpose of § 13-4(4), and in light of this court's reluctance to apply the law in a hypertechnical manner so as to elevate form over substance, . . . we decline to conclude that a plaintiff's disclosure is inadequate because it fails to elucidate certain facts that are well known to the defendant. (Citations omitted.) Wexler v. De Maio, 280 Conn. 168, n. 13 (2006).
In Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1 (2001), the Supreme Court reversed a dismissal based on inadequate disclosure of an expert witness, saying
[D]iscretion imports something more than leeway in decision-making . . . It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort . . . [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court. (Citations omitted; internal quotation marks omitted.) Id., 16-17.
The Appellate Court relied on the foregoing quote from Millbrook in reversing a preclusion of a plaintiff's expert made 6 months and 19 days after the scheduling order deadline and seven months before the scheduled date of trial. Giblen v. Ghogawala, 111 Conn.App. 493 (2008).
The Millbrook court has articulated a three-part requirement in order to impose a sanction for violation or court rule or court order:
First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning . . .
Second, the record must establish that the order was in fact violated . . .
Third, the sanction imposed must be proportional to the violation. Millbrook, supra, 17-18.
The First Millbrook standard is met here. Although § 13-4 establishes only a "reasonable time" standard, which is not specific or clear, the scheduling order implementing that standard is specific and clear. The deadline for disclosure of plaintiffs' experts was June 30, 2010. The court considers however that the scheduling order was the court's granting of a joint agreed written motion submitted by the parties fifteen months before the scheduled trial date when no expert disclosures had been filed or depositions taken. Such a forward-looking schedule over a period of about fifteen months must be considered somewhat tentative given the many procedural pitfalls of Connecticut practice lying in the road to a trial on the merits. Especially in a multi-party case such as this, with a cross claim by one defendant against another, unanticipated delays caused by normal scheduling conflicts, objections and motions to compel, etc., and the short calendar process itself are not uncommon. And there is a serial nature to the deadlines where one missed deadline "stops the train" and future missed deadlines become inevitable (e.g. depositions cannot start until written discovery is completed). The scheduling order itself recognizes these factors, saying "Scheduling Orders are nonmodifiable if they would impact the selected trial date without approval of the Civil Presiding Judge."
Second, the order was in fact violated. The actual notices of disclosure of witnesses were filed more than three months after the June 30, 2010 deadline.
This court concludes, however, that the sanction of preclusion would not be proportional to the missing of the deadline. This conclusion is based on several factors. The somewhat tentative nature of the scheduling order has been mentioned. There is also the fact that as of the date of the latest disclosure, October 27, 2010, there were still four and one-half months remaining before jury selection. Although it would have required a concerted effort, depositions of the disclosed experts, followed by selection and deposition of defense experts could have been completed before the start of evidence, which probably would have been approximately early April, given the number of juror challenges available. The court notes that several of the disclosed plaintiffs' experts were treating allergists. If defendant chose to counter their opinions with its own expert, that might have been but a single allergist witness to be selected and deposed. The court also considers that the plaintiff had disclosed the reports of its expert witnesses on July 21, 2008, almost two years before the deadline and about six months before the scheduling order even existed. Those disclosures were supplemented on several subsequent occasions. In fact, those previous disclosures were mentioned and incorporated into the actual formal expert disclosures when filed. In Wexler v. De Maio, supra, the court advised that " . . . a reviewing court should consider the entirety of the record on the date that the disclosure was filed, including the factual allegations contained in the plaintiffs' complaint, and in any discovery materials previously disclosed to the defendant." CT Page 7066 Id. n. 13. The court has also considered the defendant's duplicitous reliance on the scheduling order when it has been cavalier about its own timely responses to interrogatories and production requests. The scheduling order entered on December 16, 2009 with a deadline of April 30, 2010 for completion of written discovery requests and responses. On the following day, December 17, the Thomas defendants through their counsel submitted extensive interrogatories and production requests directed to co-defendant GMAC. On December 29, 2009 GMAC objected to each and every discovery request primarily on the ground that the Thomas defendants had not filed any cross claim against GMAC and therefore was not entitled to discovery from GMAC as an "adverse party." The Thomas defendants promptly mooted that objection by filing a cross claim against GMAC on January 5, 2010 (No. 161). GMAC then moved to strike the cross claim which was denied on April 6, 2010. The deadline for GMAC to respond to interrogatories and comply with production requests passed on April 30. Beginning in June 2010, counsel for the Thomas defendants made numerous attempts to resolve the discovery dispute with GMAC including several telephone conversations and at least six emails with GMAC's counsel. On July 1, GMAC counsel replied by e-mail: "My client contact has changed . . . I apologize for the delay, but I am trying." On July 1: "I am trying rather to obtain responses and make the required good faith attempt in light of your filing of the crossclaim and your renewed effort to obtain the responses as a result." On July 9: "I spoke with my client today. She is still in the process of gathering information . . . I impressed upon her that you were seeking responses to as many of the interrogatories and production as possible." On July 29: "I am obtaining responses to some of the discovery. The client has to do research as many of the inquiries involve actions as to or involving a closed foreclosure file." (Affidavit of Attorney Patricia M. Shepard, re Good Faith Effort to Resolve Dispute, and attached exhibits, October 25, 2010 (No. 199).) Then on September 10, 2010, more than four months after the deadline and about eight months after the period allowed by Practice Book §§ 13-7 and 13-10 for filing of objections, GMAC filed new objections to the interrogatories and production requests, which, so far as the record shows, have never been answered or complied with. Therefore, although GMAC now relies heavily on the scheduling order in seeking sanctions against the plaintiffs, it has ignored that same order in dealing with the discovery requested by the Thomas defendants.
The circumstances existing at the time plaintiffs made their disclosures must be the focal point. Unfortunately the motions to preclude and objections thereto did not get heard until the November 22, 2010 short calendar, and this opinion, although written within the 120-day deadline, might ideally have been written much sooner and not just at the eve of the scheduled trial date. A busy trial schedule and other commitments interfered.
It is not unheard of to schedule last-minute depositions during jury selection or even on Mondays or weekend days during the trial itself.
A position that is contrary to the express language of Practice Book §§ 13-6 and 13-9 which permit "any party" to submit interrogatories or production requests "upon any other party." There is nonetheless Superior Court authority for the adverse party requirement. See, e.g. Braynes v. Hayes, 28 Conn.Sup. 484, 486 (1970) ("It does not seem proper that one defendant should be in a position to default a co-defendant and so preclude his pleading further, where the result would assist the plaintiff who has not moved in that direction").
Finally, the court relies on the lack of bad faith of the plaintiffs and the lack of prejudice to GMAC caused by plaintiff's late disclosure of experts. GMAC knew the identity of plaintiffs' experts and the substance of their opinions since 2008. The only thing lacking was the formal disclosure. There was obviously no bad faith in plaintiffs' late filing of the formal disclosure of experts which counsel attributes to an oversight. If plaintiffs were trying to hide anything they would not have been so forthcoming in disclosing the expert's reports. GMAC, if it tried, could have been ready for trial even after the late disclosure. But instead it has pressed hard with numerous motions and extensive briefs seeking preclusion which would almost certainly destroy the plaintiffs' case. The resolution of those attempts to gain a procedural advantage has unfortunately now brought about the need for a continuance of the trial date which will totally eliminate any conceivable claim of prejudice attributable to the lateness of the disclosure. "In determining the proportionality of a sanction to a violation, we have in the past considered the severity of the sanction imposed and the materiality of the evidence sought . . . whether the violation was inadvertent or wilful . . . and whether the absence of the sanction would result in prejudice to the party seeking the sanction." (Citations omitted.) Forster v. Gianopoulos, 105 Conn.App. 702, 711, 939 A.2d 1242 (2008).
Order
For the foregoing reasons defendants' motions Nos. 190, 195/196, 203, 205/206, 207, 213, 217, and 218 are denied. Plaintiff's objection No. 204 is sustained. The parties shall consult with each other regarding a revised scheduling order which will permit an accelerated but orderly progression toward a realistic new trial date and present the same to the presiding judge, civil, for his decision.