Gianetti v. Neigher
| Decision Date | 09 August 2022 |
| Docket Number | AC 44320 |
| Citation | 214 Conn.App. 394,280 A.3d 555 |
| Parties | Charles D. GIANETTI v. Alan NEIGHER |
| Court | Connecticut Court of Appeals |
214 Conn.App. 394
280 A.3d 555
Charles D. GIANETTI
v.
Alan NEIGHER
AC 44320
Appellate Court of Connecticut.
Argued March 3, 2022
Officially released August 9, 2022
Kenneth A. Votre, New Haven, with whom, on the brief, was Anthony J. Beale, for the appellant (plaintiff).
Robert C. E. Laney, Stamford, with whom, on the brief, was Ryan T. Daly, for the appellee (defendant).
Bright, C. J., and Prescott and Moll, Js.
PRESCOTT, J.
This appeal arises out of a legal malpractice action brought by the plaintiff, Charles D. Gianetti, against the defendant, Alan Neigher, an attorney who represented the plaintiff in a prior civil action (prior action) against Norwalk Hospital (hospital). The plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendant. On appeal, the plaintiff claims that the court improperly granted the defendant's motion to preclude the testimony of the plaintiff's expert witness, Attorney Bruce H. Stanger, because (1) the sanction of precluding the testimony was not proportional to the plaintiff's noncompliance with the expert disclosure requirements set forth in Practice Book § 13-4,1 which the plaintiff contends
could have been adequately remedied by a less severe sanction, and (2) in so sanctioning the plaintiff, the court improperly determined that the expert's opinion was not supported by a sufficient factual basis.2 The plaintiff additionally claims that the court improperly rendered summary judgment because (1) the court failed to
consider the testimony of his expert witness, and (2) even if the court properly precluded the testimony of his expert witness, a genuine issue of material fact nonetheless existed as to the legal malpractice elements of causation and damages.3 We affirm the judgment of the court.
The following facts and procedural history, both in the present legal malpractice action and arising out of
the defendant's representation of the plaintiff in the prior action, are relevant to our resolution of this appeal. "The plaintiff [was] a physician who specialize[d] in the field of plastic and reconstructive surgery. In 1974, the plaintiff was granted provisional clinical privileges as a member of the ... medical staff [of the hospital]. In 1976, the plaintiff was granted full clinical privileges as an assistant attending staff physician [for the hospital]. The plaintiff's privileges were renewed on an annual basis through 1983....
"In 1983, the plaintiff applied for the renewal of privileges for 1984. On the basis of the recommendations of the hospital's department of surgery, section of plastic and reconstructive surgery and credentials committee, the medical staff of the hospital declined to renew the plaintiff's privileges for 1984. The hospital's board of trustees subsequently ratified the decision of the medical staff. ...
"In response to the [hospital's decision not to renew his] privileges [for 1984], the plaintiff [initiated] the [prior] action against the hospital4 in December, 1983 ...." (Footnote added; footnote omitted.) Gianetti v. Norwalk Hospital , 266 Conn. 544, 547–48, 833 A.2d 891 (2003). The defendant represented the plaintiff in the prior action. In his complaint, the plaintiff alleged breach of contract and antitrust violations. See Gianetti v. Norwalk Hospital , 211 Conn. 51, 52, 557 A.2d 1249 (1989). The matter thereafter was assigned to an attorney trial referee. See Gianetti v. Norwalk Hospital , supra, 266 Conn. at 548, 833 A.2d 891.
On March 11, 1987; see Gianetti v. Norwalk Hospital , supra, 211 Conn. at 52, 557 A.2d 1249 ; "[the] attorney trial referee ...
concluded in [a] report that ... the hospital, through its employees and agents, had breached [its] contract [with the plaintiff] by failing to follow the procedural requirements of its bylaws in declining to renew the plaintiff's privileges." Gianetti v. Norwalk Hospital , supra, 266 Conn. at 548, 833 A.2d 891. On July 18, 1993, the trial court accepted the attorney trial referee's report; see Gianetti v. Norwalk Hospital , 304 Conn. 754, 760, 43 A.3d 567 (2012) ; and "rendered [an interlocutory] judgment in favor of the plaintiff on [his breach of contract claim as to] the issue of liability."5 (Internal quotation
marks omitted.) Id. ; see also Gianetti v. Norwalk Hospital , supra, 266 Conn. at 549, 833 A.2d 891. The court subsequently conducted a hearing to determine the appropriate remedy and, on September 9, 1999, awarded the plaintiff nominal damages. See Gianetti v. Norwalk Hospital , supra, 304 Conn. at 761, 43 A.3d 567.
The plaintiff appealed from the court's award of nominal damages and, after this court; see Gianetti v. Norwalk Hospital , 64 Conn. App. 218, 779 A.2d 847 (2001), rev'd in part, 266 Conn. 544, 833 A.2d 891 (2003) ; and our Supreme Court; see Gianetti v. Norwalk Hospital , supra, 266 Conn. 544, 833 A.2d 891 ; decided the appeal, the matter was remanded to the trial court. See Gianetti v. Norwalk Hospital , supra, 304 Conn. at 763, 43 A.3d 567. On remand, the court
held a hearing in damages and, in a memorandum of decision dated April 15, 2009, awarded the plaintiff $258,610 plus costs on the breach of contract count.6 See id.
In August, 1996, during the pendency of the prior action and before the court had awarded him damages for the hospital's breach of contract, the plaintiff sought leave to amend his complaint to add an additional count asserting a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. See Gianetti v. Norwalk Hospital , Superior Court, judicial district of Fairfield, Docket No. CV-84-0214340-S (September 9, 1999), rev'd on other grounds, 64 Conn. App. 218, 779 A.2d 847 (2001), rev'd in part, 266 Conn. 544, 833 A.2d 891 (2003). The court, Rush, J ., denied the plaintiff's motion for leave to amend the complaint. See id. Subsequently, the defendant commenced, on the plaintiff's behalf, a separate action against the hospital, alleging a violation of CUTPA. On April 9, 2002, the court, Sheedy, J ., granted the hospital's motion for summary judgment as to the plaintiff's CUTPA claim; see Gianetti v. Norwalk Hospital , Superior Court, judicial district of Fairfield, Docket No. CV-98-0354312-S (April 9, 2002) ( 31 Conn. L. Rptr. 676, 678, 2002 WL 853596 ); and concluded that the claim was time barred by the applicable three year statute of limitations. See General Statutes § 42-110g (f).
On May 14, 2015, the plaintiff initiated the present legal malpractice action (present action) against the defendant in connection with the defendant's representation of the plaintiff in the prior action. In his revised, operative complaint, dated February 27, 2017, the plaintiff alleged two counts of legal malpractice,7 one count
of violating CUTPA, one count of breach of fiduciary duty, and one count of breach of contract. With respect to the legal malpractice counts, the plaintiff contended that, despite his having prevailed on the breach of contract count against the hospital in the prior action and having recovered $258,610 plus costs on that count; see Gianetti v. Norwalk Hospital , supra, 304 Conn. at 763, 43 A.3d 567 ; the defendant nonetheless committed professional negligence by failing to timely bring against the hospital claims of violation of CUTPA and tortious interference with business expectancies in the prior action.
The court, Heller, J ., entered a scheduling order on October 15, 2015, which required the plaintiff to disclose any expert witnesses he anticipated calling to testify at trial by April 1, 2016, and scheduled the trial to commence on April 25, 2017. On July 12, 2016, the court granted the defendant's motion to amend the court's scheduling order and, accordingly, modified the plaintiff's deadline to disclose any expert witnesses he anticipated calling to testify at trial to August 8, 2016.
On November 1, 2016, the defendant filed a motion for nonsuit, arguing that the plaintiff had failed to respond sufficiently to interrogatories—including an interrogatory in which the defendant requested that the plaintiff identify the expert witnesses he anticipated calling to testify at trial—and requests for production that the defendant had served on the plaintiff on July 6, 2015.
The court, Jacobs, J ., denied the defendant's motion without prejudice and ordered "[t]he plaintiff ... to comply with [the defendant's] interrogatories ... and requests [for] production ... by" December 27, 2016. On January 25, 2017, the defendant moved for a continuance of the trial date, which the court, Mintz, J ., granted on February 1, 2017. The trial date was continued to November 28, 2017.
The plaintiff responded to the defendant's interrogatories on March 8, 2017. In his response, the plaintiff for the first time named Stanger as an expert witness he planned to call to testify at trial. The plaintiff, however, merely stated the following in his response: "I expect ... Stanger ... will testify as an expert witness at the trial in this matter"; the "[s]ubject matter [of Stanger's testimony] [would] be [the] defendant's [alleged] professional negligence and legal malpractice"; that "[s]uch facts and opinions [would] be supplemented as required after review of [the plaintiff's] revised complaint and [after] discovery"; and "[s]uch grounds for each opinion [would] be supplemented as required after review of [the plaintiff's] revised complaint and [after] discovery." The plaintiff promised the defendant that he would supplement his response by disclosing Stanger's opinions at a later date. The plaintiff, however, did not supplement this response.
On April 10, 2017, the defendant moved to strike all counts of the plaintiff's complaint, including the legal malpractice counts. On October 23, 2017, the court, Jacobs, J ., granted the defendant's...
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