Opinion
No. CV 04 0104038S
May 2, 2007
RULING ON PLAINTIFF'S MOTION FOR ORDER RE: EXPERT WITNESS DISCOVERY AND DISCLOSURE
The plaintiff, Edward Shukis, has moved to be allowed to amend his expert disclosure so that Dr. Priscilla Baillie, an aquatic ecologist, and Professor Harvey Luce, a soil scientist, may supplement their opinions disclosed prior to October 2006, and so that any expert witness may offer opinion testimony in rebuttal to evidence submitted or testimony rendered at trial. All defendants object to the foregoing motion.
Factual and Procedural Background
By complaint dated December 30, 2003 the plaintiff brought this action against Regional School District No 17 (Haddam Killingworth) Board of Education ("BOE"), the Town of Haddam ("Haddam"), the project contractor, Sideco, Inc. ("Sideco"), the project landscape architect, M.R. Roming Associates, P.C. ("Roming"), the project civil engineer, Tortes Engineering, Inc. ("Tortes"), and a consulting soil science firm, Soil Science and Environmental Services, Inc. ("SSES").
The original complaint and several subsequent revised complaints allege generally that the plaintiff Edward J. Shukis, is the owner of land located at 33 Little City Road in the Higganum section of Haddam. In September, October and December of 2000 an investigation revealed that Haddam-Killingworth BOE's renovation and construction of an athletic field caused the accumulation of large deposits of silt, rocks and dirt along the edges of a pond located on the plaintiff's property. Site visits by the Town's wetlands enforcement officer, the plaintiff, the plaintiff's engineering firm, and the defendant M.R. Roming, the project architect, from October 200 through January 2002 revealed several instances of erosion control measures failing. Despite a cease and desist order issued by the Town wetlands enforcement officer against continued illegal discharge into the wetlands, large quantities of storm water runoff containing soil, rocks and other debris continues to flow from the school property into the plaintiff's pond and surrounding wetlands. The defendants' actions have caused or allowed water, rocks, silt, bacteria, and other waterborne substances to enter and harm the wetlands area on the plaintiff's property and the illegal and ongoing discharge of storm water, silt, iron bacteria, rocks, top soil and other materials into the wetlands located on the plaintiff's property and the resultant filling of those wetlands.
The allegations of the complaint, that sedimentation from a construction site did ecological damage to a pond, are so dependent on expert scientific evidence that the complaint, arguably, required an expert opinion prior to filing in order to comply with Practice Book § 4-2(b), which provides in pertinent part:
The signing of any pleading, . . . shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and belief there is good ground to support it, and that it is not interposed for delay.
The initial Scheduling Order dated August 9, 2004, to which the plaintiff consented, required the plaintiff to disclose his expert witnesses by June 15, 2005. As of that date, the plaintiff had already had eighteen months after the date of filing the complaint to secure the expert witness testimony necessary to prove his case. However, the plaintiff did not meet this court-ordered deadline and waited until six months later to file a formal extension of the deadline. In his Motion to Modify Case Management Scheduling Order dated January 13, 2006 the plaintiff requested an additional 14-month extension until August 1, 2006 to disclose expert witnesses. This request was based, in part, on the following representation:
The proposed schedule is driven by the unavailability of plaintiff's expert witnesses and every party's need for adequate discovery and response time. Plaintiff's expected scientific experts report that field work and analysis remains which must be done during the summer. Therefore, they are unable to promise final results and to be ready for depositions before August 1, 2006. If any expert witness the plaintiff intends to call can be ready before that date, the expert will be disclosed.
The court granted the plaintiff's Motion to Modify Scheduling Order on January 18, 2006.
Under this new order the plaintiff was to disclose his expert witnesses by August 1, 2006. The plaintiff failed to meet his own requested deadline. August 1 passed without any disclosure of expert witnesses by the plaintiff and without any motions for extension of time to disclose. Consequently, the defendant, Roming, filed a Motion to Preclude Expert Witnesses dated August 22, 2006.
On September 25, 2006 the undersigned heard oral argument on Roming's Motion to Preclude and the plaintiff's objection thereto. As of that date, the plaintiff had made a total of five expert disclosures that included one report of Dr. Baillie and three reports of Professor Luce. At that hearing, plaintiff's counsel represented to the court:
I think all of the opinions are in the reports, in fact, it's greater information than would normally be disclosed, it would probably be preferable to have the disclosures made in a report form than have counsel interpret them and lay them out line-by-line. I think everything's clear, it's been stated in great detail and we're done in terms of what we intend to use at trial.
In light of the foregoing representations, the court did not preclude the late-disclosed opinions of Dr. Baillie and Professor Luce, but did preclude the plaintiff from offering any opinions not contained in the existing reports.
The defendants object to the plaintiff's attempt to "supplement" Dr. Baillie's report with pictures and to offer a new opinion through Professor Luce concerning erosion and sedimentation controls. The primary reason for the objection is that the defendants have expended significant time consulting with their own experts in preparation to depose Dr. Baillie and Professor Luce and have relied on the plaintiff's clear representation that the extant reports of those experts were a complete and detailed account of their opinions. They argue that the questioning during depositions have revealed gaps in the existing opinions of those experts and the present attempt to add to the opinions of those experts amounts to "gap-plugging."
Dr. Baillie's report is dated September 6, 2006. It is 35 pages long and contains several pictures and charts. The defendants deposed Dr. Baillie on January 24, 2007. It was not until after that date that the plaintiff's counsel showed Dr. Baillie a number of photographs of the pond in question. Those photographs had been in the plaintiff's possession since before December 30, 2003, the date of the original complaint. The plaintiff now seeks to use those pictures to supplement Dr. Baillie's opinions. He has provided no reason why he failed to provide those photographs to Dr. Baillie prior to the time she completed her report.
The plaintiff provided the defendants with three reports of Professor Luce. None of those reports contain any opinions on the project erosion and sedimentation control. At his deposition on February 20, 2007 Professor Luce stated that he had never been asked to opine on that topic.
The defendants argue that the plaintiff has had more than enough time to produce expert opinions, has emphatically represented that the reports of Professor Luce and Dr. Baillie were complete, the defendants have relied on those representations and would be prejudiced by the plaintiff's requested additions to those opinions. They further argue that it is unfair to require them to defend against ever-changing theories of liability in a case in which liability can only be established through expert testimony.
The court agrees with the defendants. The court has given the plaintiff adequate extensions of time. To the extent that a refusal to allow the plaintiff to supplement his experts' opinions is deemed to be a sanction, that sanction is warranted under the three-part test of Millbrook Owners Ass'n, Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001), recently applied in McVerry v. Charash, 96 Conn.App. 589, 901 A.2d 69 (2006):
In Millbrook Owners Ass'n, Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001), our Supreme Court articulated the standard for imposing and reviewing sanctions for violation of discovery orders, pursuant to Practice Book § 13-14 or to the court's inherent power to impose reasonable sanctions. The court held that "for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation." Id. Whether a sanction is proportional to the violation "poses a question of the discretion of the trial court that we will review for abuse of discretion." Id., 18.
McVerry v. Charash, supra, at 597.
The plaintiff was clearly under an order to provide his full expert disclosures by August 1, 2006, a date he requested after he failed to meet an earlier deadline he had also requested. After the plaintiff failed to timely disclose his experts and pursuant to Roming's motion to preclude, the court allowed the opinions of Professor Luce and Dr. Baillie, disclosed after the deadline, but before September 25, 2006. On September 25, 2006, the plaintiff's counsel stated on the record that those reports represented "all of the opinions" of the experts and that they were very detailed. On September 25, 2006 the court ruled that no further expert disclosures would be allowed. The plaintiff's current attempt to disclose new opinions of Professor Luce and Dr. Baillie violate the scheduling order and the court's order issued on September 25, 2006.
To the extent that a denial of the plaintiff's motion is deemed a sanction, it is appropriate and proportional in light of the procedural history set forth above. The court has an obligation to protect the interests of all parties in a litigation. In Randolph v. Norwalk Hospital Association, 2006 Conn. Super. LEXIS 2950 (Sept 26, 2006, Adams, J.), the court in ruling on a motion to preclude expert testimony stated:
The proportionality of the sanction of preclusion merits further discussion. The court is aware that preclusion of the testimony of Dr. Cuellar will likely have serious, possibly fatal, consequences for the plaintiff's case, since, as noted above, expert testimony is essential to prove a medical negligence case. This court is also mindful of the goal of the judiciary to obtain adjudication of those cases, which cannot be resolved by agreement, on the merits of the parties' positions. It is important, however, to the court's function in expediting and controlling the flow and progress of civil litigation that rules and orders designed to accomplish that end be adhered to, and if necessary enforced. A scheduling order such as Judge Rogers' should not be flaunted, nor should Practice Book provisions be ignored. This case is based on events over five years old. The lawsuit itself has been pending almost three years and a trial date of October 11, 2006 was set a year ago. A defendant is entitled to its day in court on a level battleground equally as much as the plaintiff, and both parties are entitled to rely on compliance by the other with orders and court rules. In this case the plaintiff's failure to comply has placed the defendant in a position of being unfairly prejudiced if the plaintiff's expert is allowed to testify on the scheduled trial date. Therefore, the court finds that an order of preclusion is proportional to the rules violations of the plaintiff because any other remedy, e.g. no preclusion, lengthy continuance of trial date to allow further discovery of Dr. Cuellar and defendant's disclosure of rebuttal expert, 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. See Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., supra, 79 Conn.App. 47. (Emphasis added.)
The present case involves events which occurred seven years ago. The lawsuit has been pending for three and one-half years. Unlike the defendants in Randolph, the defendants here do not seek to preclude the opinions of Dr. Baillie and Professor Luce. They merely seek to limit the opinions to those provided as of September 25, 2006 and to prevent those experts from "supplementing" or expanding upon those opinions.
The plaintiff previously stated that the already-disclosed opinions of Dr. Baillie and Professor Luce were complete and detailed. No new information has arisen since those opinions were disclosed. The plaintiff has failed to present any good reasons why the opinions once deemed complete are now in need of supplementing. The absence of such reasons lends credence to the defendants' argument that the plaintiff is seeking to strengthen the opinions only after the weaknesses thereof were illuminated during depositions.
Were the court to grant the plaintiff's motion, it would be rewarding a party who has repeatedly flaunted existing scheduling orders at the expense of parties who have attempted to comply with the orders and would skew the level playing field which the court must insure for all parties.
For the foregoing reasons the plaintiff's Motion for Order re Experts dated March 21, 2007 is hereby denied. The plaintiff is limited to the opinions of his expert witnesses as they existed on September 25, 2006 and may not supplement, enlarge or offer new opinions which should have been disclosed on August 1, 2006 either directly or in the guise of a "rebuttal" opinion.