D'Ascanio v. Toyota Indus. Corp., No. 18935.

• Court: Supreme Court of Connecticut
• Writing for the Court: EVELEIGH
• Citation: 309 Conn. 663,72 A.3d 1019
• Parties: Emilio D'ASCANIO et al. v. TOYOTA INDUSTRIES CORPORATION et al.
• Docket Number: No. 18935.
• Decision Date: 13 August 2013

309 Conn. 663
72 A.3d 1019

Emilio D'ASCANIO et al.
v.
TOYOTA INDUSTRIES CORPORATION et al.

No. 18935.

Supreme Court of Connecticut.

Argued April 24, 2013.
Decided Aug. 13, 2013.

[72 A.3d 1021]

Paul D. Williams, with whom were Erick M. Sandler, Hartford, and, on the brief, James E. Hennessey and Patrick W. Schmidt, pro hac vice, for the appellants (defendant BT Prime Mover, Inc., et al.).

Jack G. Steigelfest, Hartford, for the appellees (plaintiffs).

NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

EVELEIGH, J.

[309 Conn. 665]In this products liability case, the defendants Toyota Material Handling USA, Inc., BT Prime Mover, Inc., and Summit Handling Systems, Inc., ¹ appeal ² from the judgment of the Appellate Court reversing the judgment of the trial court directing a verdict in their favor. On appeal, the defendants claim that the Appellate Court improperly concluded that the trial court abused its discretion in striking the testimony presented by the plaintiffs' expert

[72 A.3d 1022]

witness, precluding that expert witness from offering further testimony and denying the plaintiffs' motions for a mistrial and a continuance. In response, the plaintiffs, Emilio D'Ascanio and Maria D'Ascanio,³ contend that the Appellate Court [309 Conn. 666]correctly determined that the trial court abused its discretion because the trial court's rulings, considered in their entirety, constituted an improper sanction of dismissal because they left the plaintiffs without an expert witness in a case in which one was required and, thus, led to a directed verdict in favor of the defendants. Specifically, the plaintiffs claim that the trial court had other reasonable remedies available to it rather than excluding their expert's testimony and that, even if it did exclude his testimony, it should have granted a mistrial or a continuance so that they could have disclosed another expert witness. Thus, the plaintiffs claim that, because the sanction of dismissal should be employed only as a last resort, the trial court improperly resorted to imposing that sanction in the present case. We agree with the plaintiffs and, accordingly, affirm the judgment of the Appellate Court. ⁴

The opinion of the Appellate Court sets forth the following facts and procedural history. “On June 14, 2005, the plaintiffs filed this action for damages incurred as a result of serious personal injuries sustained by Emilio D'Ascanio when he was operating an allegedly defective stand-up forklift designed, manufactured and distributed by the defendants. The plaintiffs alleged that defects in the forklift's steering system and its electronic control display proximately caused Emilio D'Ascanio's injuries. The court bifurcated the trial of the case, commencing with the presentation of evidence on the issue of liability.

“The plaintiffs began their case by presenting the testimony of Daryl Ebersole, an engineer whom they had disclosed as their expert witness on the issue of whether the forklift in question was defective. After Ebersole had testified for the majority of the first day [309 Conn. 667]of trial, the plaintiffs sought to introduce into evidence a videotape that depicted a Toyota forklift with an electronic directional display system. The defendants objected to the admission of the videotape, and, in response, the court excused the jury to hear the arguments of counsel. The defendants objected first on the basis that they were unaware of any videotape involving the exact model of forklift at issue in this case. In response, the plaintiffs' counsel asked Ebersole: ‘[H]ave you reviewed any video by any defendant in this action which portrays a directional control indicator as a [safety]-related device?’ In an attempt to resolve the confusion of the court and the defendants' counsel as to what the videotape actually portrayed, the plaintiffs' counsel stated: ‘[M]y point being is it's the same person that puts the name on the truck—they're claiming that this directional control indicator on—same manufacturers is a safety-related device, and it does the same thing. It may look different but it does the same job.’ In an attempt to further lay a foundation for the exhibit, the plaintiffs' counsel asked Ebersole: ‘Have you seen a video by any defendant—by Toyota Material Handling [USA, Inc.] that shows a directional control indicator on one of its vehicles and they've portrayed it as a safety

[72 A.3d 1023]

device?’ Ebersole indicated that he had seen such a videotape and that he had obtained it from ‘a Toyota [website].’ He indicated that, although the directional control indicator and steering wheel might look different from those on the forklift at issue in the present case, they served the same safety purpose. The defendants' counsel then undertook his voir dire examination of Ebersole. He began by asking Ebersole: ‘[W]hat model Toyota is shown in the video?’ Ebersole indicated that he believed it was a ‘six series' but that he was not certain exactly which model it was. The plaintiffs' counsel then asked Ebersole about the number of indicator lights on the model in the videotape, and a discussion[309 Conn. 668]ensued between counsel and the court as to the contrast between the number of indicator lights on that model and the model at issue in the case before the jury. The defendants' counsel voiced various further objections as to foundation, and, in response, the plaintiffs' counsel offered the defendants' counsel the opportunity to view the videotape. The defendants' counsel did not avail himself of that offer, and the court overruled the objection and admitted the videotape into evidence.

“The videotape was first played for the jury and the court without commentary by Ebersole. The defendants' counsel did not raise any further objection to the videotape at that time. The videotape was then played a second time with Ebersole explaining what it depicted. The defendants' counsel objected only to any ‘editorial comment’ by Ebersole. The court sustained the objection, and the remainder of the videotape was played for the jury again with Ebersole intermittently pausing the tape and explaining what it depicted. After the videotape had been played for the jury for the second time, the plaintiffs' counsel suggested that it be played one more time, a third time, straight through, without any narration or commentary. At that point, the defendants' counsel asked to approach the court. The court dismissed the jury for the weekend, and the defendants' counsel objected to the admission of the videotape. The thrust of the defendants' objection was that the forklift portrayed in the videotape was not the same model that was involved in this case, and the two forklifts did not have the same displays. The court agreed that it, too, thought that the videotape was going to depict the same control system and indicated that it assumed that the jury shared that understanding. The court indicated that, when the jury reconvened, it would strike the exhibit and instruct the jury that it should be disregarded on the ground that it ‘is not a video [309 Conn. 669]which involves the model truck which is involved in this accident....’ Although the defendants' counsel accepted the court's ruling, further colloquy followed regarding the origin of the videotape, specifically regarding the date that the truck depicted in the videotape was manufactured. The plaintiffs' counsel indicated that he would attempt to obtain that information, and court adjourned for the weekend.

“By the time court reconvened on the following Tuesday, May 25, 2010, the defendants had filed a motion for a mistrial on the ground that Ebersole and the plaintiffs' counsel intentionally misled the jury and the court in their efforts to admit the videotape into evidence. The court questioned both the plaintiffs' counsel and Ebersole as to when they knew that the forklift in the videotape did not depict the model forklift that was the subject of the present litigation. The court also inquired as to the time of the making of the videotape. Following lengthy argument, the court ruled that both the videotape and Ebersole were ‘out of the case,’ striking the testimony that he had already given and precluding him from testifying further.

[72 A.3d 1024]

“Subsequently, on May 28, 2010, the plaintiffs filed a motion for a continuance to allow them to disclose another liability expert. On that same date, the plaintiffs also filed a motion for a mistrial on the ground that they could no longer proceed with their cause of action without a liability expert. On June 1, 2010, the court issued a memorandum of decision denying the plaintiffs' motions. In explaining its decision to strike the testimony, and to preclude further testimony of Ebersole, the court found that ‘Ebersole's behavior was motivated by a desire to hide critical facts about the evidence in question and was therefore deceptive’ and that such evidence ‘certainly would have been prejudicial to the defendants.’ The court concluded that a mistrial would not have been an appropriate remedy because it would [309 Conn. 670]‘excuse ... Ebersole from the consequences of his behavior. If this trial had to be put on all over again ... Ebersole could conceivably be replaced, and the plaintiffs would get the equivalent of a judicial “do-over.” ’ The court concluded that a curative instruction would ‘not do enough to undo the harm done here.’ Finally, the court concluded that: ‘When a witness whom the court has qualified as an expert demonstrates, as ... Ebersole has, that his testimony cannot be relied on to be honest and complete, the testimony should not be permitted.’ The court found that the ‘available alternative relief was simply not severe enough, under the circumstances, to address this witness' behavior.’ The court summarily denied the plaintiffs' motion for a continuance of the trial to allow them to disclose another liability expert.

“The plaintiffs continued...