Opinion
No. CV07-5014621 S
September 14, 2011
MEMORANDUM ON SANCTIONS
This case arises out of an extensive damage claim for injury caused to the plaintiff's property due to water flow after a storm. The plaintiff disclosed two experts Robert Wheway and Christopher Juliano; the Wheway disclosure was made on February 10, 2010, that of Juliano on December 21, 2010. Jury selection began on April 11, 2011, the jury was picked by April 13, 2011.
Motions to preclude the testimony of Wheway and Juliano were filed by the defendant on April 8, and April 13, 2011. Trial began on Tuesday, April 19, 2011. The motions to preclude were based on allegations that the expert opinion set forth in the plaintiff's disclosure did not meet the requirements of State v. Porter, 241 Conn. 57 (1997). Porter hearings were held on April 20 and April 25, 2011. At the Porter hearings the plaintiff presented evidence from its experts which involved new opinions and/or new information to support their opinions. The new opinions and information were in effect a response to the motions in limine. The court based on what it perceived as a clear violation of Practice Book § 13-4 by the plaintiff granted a mistrial and said it would entertain a motion for additional sanctions regarding reimbursement of the defendant for legal fees and expenses incurred.
It should be noted that the motions to preclude although filed on the eve of trial with one being filed on the final day of jury selection did not violate any scheduling order and to the court's memory no objection was made in chambers or on the record by the plaintiff to the court's hearing of the motions to preclude based on their being untimely filed. In this regard motions to preclude based on Porter in our courts and Daubert in the federal courts present a peculiar problem, at least to this court. The great if not overwhelming majority of motions to preclude expert testimony involve situations where the movant argues that the disclosure is untimely and/or is in violation of a scheduling order. Porter hearings by their nature involve the raising of evidentiary scientific and technical objection to the validity of evidence to be presented in court — i.e. the argument under Porter standards is that the evidence being offered or sought to be offered should not in fairness or even rationally be considered by the trier of fact in resolving, for example, issues of causation. How do timeliness considerations figure in this context — should a party be precluded from challenging the validity of the expert opinion which may otherwise be bogus?
The way out of such a situation is what the Practice Book would seem to permit. The motions to preclude were filed eleven days and six days before the commencement of evidence. The appropriate procedure would have been for the plaintiff to move to amend its expert disclosure in response to the motions to preclude which were filed on the eve of trial and even as to one after jury selection commenced. The solution is not, in the court's opinion, without any notice to the other side to offer expert opinions based on entirely new information not included in the earlier filed expert disclosure.
If a request to amend the disclosure were to have been made the court could have denied the request or more fairly, in its opinion, permitted such amendment but then would have entertained a request by defense counsel to continue the trial or abort it — here evidence did not begin until six days after the conclusion of jury selection or the filing of the last motion. The defendant would have had a right to consider that option which in effect the plaintiff took away from it. Such a request would obviously be granted since the new disclosure would have entailed the need to conduct further discovery and depositions and consultations with the defense's own experts.
None of this is of course satisfactory to the defendant; it argues the court should have precluded expert testimony by the plaintiff's experts covering information not set forth in the original expert disclosure, and ruled on the Porter objections so as to preclude these experts from rendering an opinion based on the original disclosure as to what they were to base their opinion upon.
Filing of the request for sanctions by the plaintiff cannot in fairness be considered a waiver of its right to raise this argument. What else could counsel do to protect his client's interest? Even if the court was correct in granting a mistrial, unnecessary and unwarranted expenses were still imposed on the defendant.
Rightly or wrongly the court decided understandable difficulties were presented to the plaintiff by the late filing of the motions to preclude, hence the mistrial, but the appropriate response was not to avoid any reference to these difficulties and to surprise the defendant by presenting expert testimony in such a way and at such a time in the trial that would make it difficult or impossible for the defendant to fully respond to other than by comments to the jury to the effect that — you didn't rely on that information in your initial disclosure did you?
Sanctions are appropriate in terms of legal fees and expenses resulting from the nondisclosure and resulting mistrial. Defense counsel has submitted an itemization of the fees and expenses accompanied by an affidavit. The court will now try to discuss the expenses.
(1)
First the court will discuss attorneys fees and expenses. As the defendant notes our courts examine the factors listed in Rule 1.5(a) of the Rules of Professional Conduct in deciding what is a reasonable attorneys fee, Simms v. Chaisson, 277 Conn. 319 (2004). Some of the factors mentioned in the rule are similar to those set forth in Johnson v. Georgia Highway, 488 F.2d 714 (C.A. 5, 1974) which the court applied in Murtha v. City of Hartford, 2011 Ct.Sup. 3172, and Advanced Arms v. CPA, 2011 Sup.Ct. 14879, although those cases involved successful completion of litigation. The relevant factors of Rule 1.5(a) are subsection (1) — time and labor involved, difficulty of questions presented (3) customary fee for legal services (7) experience, ability of lawyer involved in the representation. Lead counsel for the defendant has an hourly rate of $165 and a third year associate has an hourly rate of $145.
The issues raised by this case were very complex particularly as regards the Porter hearing issues which often present difficult problems. The ability of defense counsel, especially lead counsel, was of the highest order as the court had an opportunity to observe his handling and articulation of complex issues. If anything the hourly rate of $165 is more than reasonable and quite low in the court's view. The hourly rate for the associate is also reasonable. The time and labor involved was for a relatively short period but obviously involved intense work and commitment by defense counsel.
Attorney Esty also notes that he has been a member of the bar for over 20 years and has had more than twenty-five jury trials and many court trials. He has represented the defendant corporation for approximately sixteen years.
One of the difficulties in deciding the appropriate attorneys fees and expenses associated with their work is that a new trial has been scheduled for October 2011. Items of research that will have to be litigated in the new trial and have no connection to the plaintiff's disclosure violations should not be compensated for. The only items, however, that could fall into this category would be five hours and twenty minutes on 4/4/11 and 4/5/11 concerning emotive and loss of enjoyment claims by a corporation. All other items of expense, in the court's opinion, represent expenses directly associated with, for example, required travel and attendance at trial or what would have to be considered in large part wasted research efforts regarding areas that will be directly affected by the expanded and refined testimony from the plaintiff's experts that the defendant will have to face at a new trial. Discounting the five hours and twenty minutes previously referred to the court awards $22,300 for attorneys fees and expenses.
(ii)
The court grants the request for reimbursement of the expenses of ordering the April 20th and 25th, 2011 hearing transcripts.
(iii)
The defendant makes two other demands for reimbursement.
The defendant requests an order that all costs associated with deposing Wheway and Juliano regarding their new opinions including court reporter fees, transcript and expert fees. The defendant also requests to be reimbursed for attorneys fees associated with such depositions.
The court has a different view on this. Sanctions are not being awarded to reimburse the defendant for the costs of preparing for this new trial. Any unfair costs in this regard are attributable to this court's error, if error there be, in ordering a mistrial and not making a ruling favorable to the defendant on the Porter issue. This would not preclude a request for reimbursement of these expenses if an appellate court determined the court erred.
Sanctions here should be awarded for the wasted time, expense, and effort suffered by the defendant for failure to comply with our rules of disclosure which led the court to order a mistrial. The plaintiff should therefore be ordered to reimburse the defendant for the costs, transcript fees, and attorneys fees associated with the prior depositions of these two plaintiff experts.