2008 Ct. Sup. 7281
No. HHD X04 CV-04-4034667SConnecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
April 29, 2008
RULINGS ON MOTION TO PRECLUDE (#372) AND MOTION TO RECONSIDER (#381)
SHAPIRO, ROBERT B., Judge.
1. The plaintiffs have moved to preclude the testimony of defendants’ experts, Donald Eisentraut and Timothy Joganich. “Practice Book § 13-4(4), which governs the disclosure of experts whom parties expect to call to testify at trial, provides in relevant part that `any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert . . . within a reasonable time prior to trial . . . If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision . . . such expert shall not testify if, upon 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 trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party . . .’ The court’s decision on whether to impose the sanction of excluding the expert’s testimony . . . rests within the sound discretion of the court.” (Internal quotation marks omitted.) McVerry v. Charash, 96 Conn.App. 589, 594, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006).
“Sound discretion, by definition, means a discretion that is not exercised arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law . . . And [it] requires a knowledge and understanding of the material circumstances surrounding the matter.” (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn.App. 555, 568, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001), 259 Conn. 930, 793 A.2d 1086 (2002).
Based on review of the portions of the transcript of the deposition of defendants’ expert Stephen Benanti, dated April 18, 2008, cited by the plaintiffs, it is premature to find, as the plaintiffs allege, in their supplemental brief, paragraph 6, that “it is now apparent that the Defendants’ experts did not have any opinions or theories as to the facts of this case at the time they were disclosed.” The disclosure CT Page 7282 concerning these experts is dated January 30, 2008 (#353).
The disclosure lists a variety of sources for Eisentraut’s and Joganich’s opinions. The plaintiffs assume that the information provided by Benanti is the source of their opinions. Benanti testified that he provided materials to them in April 2008. The record before the court does not show that they received the numerous items listed in the January 2008 disclosure, on which it is claimed by the defense that these experts based their opinions, after the filing of the disclosure. Since these experts have not yet been deposed, it would be premature to conclude that, as of January 30, 2008, when they were disclosed, they had no opinions as to the facts of this case. The plaintiffs have not shown, as yet, that Eisentraut’s and Joganich’s opinions are new and are, therefore, untimely disclosed.
2. The court is unpersuaded that its recent two decisions in another case, Estate of Hodgate v. Ferraro, Docket No. X04 HHD CV 05 4034694, both dated April 16, 2008, are inconsistent with its recent ruling in this case on the plaintiffs’ motion to compel (#368), dated April 17, 2008. In its ruling, the court again directed the plaintiffs to make the bicycle which the plaintiff, Edward J. Petner, Jr., was riding at the time of the accident which is the subject of this matter, available to be inspected by the defendants. Also, the court directed that the depositions of Eisentraut and Joganich are to occur by May 9, 2008, one month before June 9, 2008, the date scheduled for the commencement of the presentation of evidence at trial.
In summary, in Hodgate, the court concluded that the plaintiff’s requests to take additional fact witness depositions, long after the deadline for the completion of fact witness depositions, would afford the plaintiff an unfair opportunity to attempt to avoid the summary judgment process. See memoranda of decisions, dated April 16, 2008, copies of which were appended to the plaintiff’s supplemental brief.
Here, the court’s modified scheduling order required that the depositions of defendants’ experts were to be completed by April 15, 2008. On April 3, 2008, the court overruled the plaintiffs’ March 14, 2008 objection (#365) to the defendants’ March 3, 2008 request for a second inspection of the bicycle (#362). In their objection to the motion to preclude (#376), the defendants asserted that the plaintiffs subsequently refused to allow the inspection unless the defense experts were deposed immediately thereafter. An affidavit from Gerard T. Hall, the senior paralegal at plaintiff’s counsel’s office, confirms this. See #373. This was not a condition of the court’s April 3, 2008 order.
CT Page 7283 While the plaintiffs asserted in the motion to compel, and in the motion to preclude, that the dates for Eisentraut’s and Joganich’s depositions, April 14 and 15, 2008, had been provided by and agreed to by defense counsel, defense counsel contended, in opposition to the motion to preclude and the motion to compel, that the dates were never discussed among the parties, and that defense counsel was unavailable on the dates and at the place selected by plaintiffs’ counsel.
The court concluded that the plaintiffs imposed a condition to the bicycle inspection which was not required. The court’s April 17, 2008 ruling on the plaintiffs’ motion to compel stated that “[t]hese witnesses are not required to be deposed immediately after the bicycle is inspected.”
The plaintiffs have not shown that the defendants violated the modified scheduling order or that the plaintiffs’ efforts to depose these experts were thwarted by the defendants’ refusal to produce them. Since, according to their motion to compel, the plaintiffs still wished to depose Eisentraut and Joganich, the court again modified the schedule, as described above, to afford an additional opportunity for them to do so.
3. The plaintiffs also request that the court reconsider its decision allowing the inspection of the bicycle. They contend again that the purpose of the inspection is to belatedly formulate opinions. As discussed above concerning the motion to preclude, the record does not show that this is the purpose. As stated above, the plaintiffs have not, as yet, shown that Eisentraut and Joganich did not have their stated opinions at the time of the disclosure thereof. Accordingly, the court declines to change its previous rulings concerning the requested inspection.
CONCLUSION
1. For the foregoing reasons, the plaintiffs’ motion to preclude the expert testimony of Donald Eisentraut and Timothy Joganich is denied without prejudice. In its trial management order, dated April 18, 2008, the court provided a schedule for the filing of motions in limine and/or to preclude any witness’ testimony. If, based on new evidence, such a motion is filed again concerning Eisentraut’s and Joganich’s testimony, the court will revisit the issues.
2. For the foregoing reasons, the motion to reconsider as to the bicycle inspection is denied.
CT Page 7284 It is so ordered.
CT Page 7285