Menna v. Jaiman, (AC 23804).

• Decision Date: 04 November 2003
• Docket Number: (AC 23804).
• Citation: 80 Conn. App. 131,832 A.2d 1219
• Court: Connecticut Court of Appeals
• Parties: LENORA MENNA v. JULIO T. JAIMAN

80 Conn. App. 131

832 A.2d 1219

LENORA MENNA v. JULIO T. JAIMAN

(AC 23804).

Appellate Court of Connecticut.

Argued September 10, 2003.

Officially released November 4, 2003.

Schaller, Bishop and Hennessy, Js.

Margaret J. Slez, for the appellant (plaintiff).

Noel R. Newman, with whom, on the brief, was James A. Mahar, for the appellee (defendant).

Opinion

SCHALLER, J.

In this personal injury action, the plaintiff, Lenora Menna, appeals from the judgment of the trial court rendered in her favor after a jury trial in which the jury awarded her $50 in nominal damages as against the defendant, Julio T. Jaiman. On appeal, the plaintiff claims that the court improperly (1) granted the defendant's motion in limine to preclude expert testimony, (2) placed the burden on her to show an absence of prejudice due to her failure to disclose expert witnesses and (3) refused to allow her to cross-examine certain witnesses. We affirm the judgment of the trial court.¹

The following facts are relevant to the resolution of the plaintiff's appeal. The plaintiff was involved in a motor vehicle accident caused by the defendant in August, 1995. The plaintiff brought an action against the defendant for injuries sustained in the accident. John Kurtzenacker, a passenger in the plaintiff's vehicle at the time of the accident, also brought an action against the defendant for injuries he sustained during the collision. The court consolidated the cases for trial.

The defendant filed a motion in limine to preclude the plaintiff from offering expert testimony regarding the cause of her injuries, disability or medical treatment because the plaintiff failed to meet the disclosure requirements for expert witnesses pursuant to Practice Book § 13-4 (4). The defendant sought the preclusion of expert testimony as a sanction for that failure. On the first day of trial, the court heard oral argument on the defendant's motion in limine. The court granted the defendant's motion, and the jury was brought into the courtroom for the presentation of opening statements.

Kurtzenacker presented his case, which included expert testimony from an orthopedic physician who treated him after the accident. The plaintiff sought and was denied the opportunity to cross-examine Kurtzenacker's expert witness. The plaintiff made three motions on the third day of trial: (1) to allow expert testimony in the form of a medical report from plaintiff's treating physician, (2) a continuance to allow the defendant to prepare for the introduction of the report and (3) a motion for a mistrial. All three motions were denied. The plaintiff presented her case without the use of expert medical testimony in an effort to prove that her injuries were caused by the August, 1995 motor vehicle accident. On August 16, 2002, the jury returned a verdict in favor of the plaintiff, but awarded only $50 in nominal damages. The plaintiff filed a motion to set aside the verdict and a motion for a new trial. The court denied both motions. This appeal followed.

I

We first consider the plaintiff's claim that the court improperly granted the defendant's motion in limine to preclude expert testimony. Specifically, the plaintiff argues that the court improperly granted the defendant's motion in limine to preclude her from offering expert testimony because the plaintiff failed to disclose the expert prior to trial. We are not persuaded.

The following additional facts are relevant to the plaintiff's claim. Two days before trial, the defendant filed a motion in limine to preclude expert testimony by the plaintiff because of her failure to disclose her expert witnesses. The defendant had served standard interrogatories on the plaintiff to disclose her expert testimony in September, 1997. The plaintiff had been ordered to disclose her expert testimony by October 5, 1998, at the early intervention pretrial. The only disclosure made by the plaintiff was in her response to the interrogatories served by the defendant nearly five years before the start of the trial. In her response to those interrogatories, the plaintiff identified the two treating physicians whom she intended to call at trial. She indicated that the physicians would testify "according to their expertise" on their "diagnosis and treatment of the plaintiff as well as any prognosis for future care and permanent disability." The plaintiff did not make any further disclosure of expert witnesses until trial. The defendant argues that the plaintiff's disclosure of her experts failed to comply with Practice Book § 13-4 and the court's order that disclosure be completed by October, 1998.

Three requirements must be met for a trial court's order of sanctions for a violation of a discovery order to withstand scrutiny. "First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion." Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).

The court's discovery order and the mandates of Practice Book § 13-4 are "reasonably clear" and satisfy the first prong of the test under Millbrook Owners Assn., Inc. The defendant was ordered to disclose her expert witnesses by October 5, 1998, and was served with interrogatories requesting information on the expert witnesses she intended to call at trial pursuant to Practice Book § 13-4 (1).² Such an order requires the plaintiff merely to comply with the rules of practice. Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 759, 785 A.2d 588 (2001).

The record establishes that the order to disclose was violated, satisfying the second prong of the test under Millbrook Owners Assn., Inc. Practice Book § 13-4 (4) sets forth an affirmative duty that "[a]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . ." In the present case, the plaintiff merely identified the two treating physicians and stated that they would testify as to their expertise in relation to their treatment of her. The plaintiff failed to file an expert disclosure pursuant to Practice Book § 13-4, and her interrogatory responses did not, except in the most cursory fashion, state the substance of the facts and opinions about which the experts were expected to testify. The plaintiff's disclosure did not comply with the requirements of Practice Book § 13-4 (4). Thus, the court's finding of a violation of a discovery order was not clearly erroneous.

Finally, the third prong of the test under Millbrook Owners Assn., Inc., was satisfied. The court's exclusion of the expert testimony as a sanction for the plaintiff's violation of the court's discovery order and her failure to comply with the affirmative duty to disclose found in Practice Book § 13-4 was proportional to the violation. Furthermore, Practice Book § 13-4 (4) specifically authorizes the court to preclude expert testimony if the plaintiff fails to disclose such experts properly.³ The court's order of sanctions satisfied all three prongs of the test under Millbrook Owners Assn., Inc., concerning sanctions for violation of a discovery order and, thus, withstands scrutiny. The court did not abuse its discretion in granting the defendant's motion in limine to preclude expert testimony by the plaintiff.

II

The plaintiff's second claim is that the court improperly shifted the burden to her to show an absence of prejudice to the defendant as a result of her failure to disclose expert witnesses. The plaintiff argues that the court improperly concluded that her inadequate disclosure caused prejudice to the defendant without a factual basis for its decision other than the late disclosure itself. We are not persuaded.

The following additional facts are relevant to the plaintiff's claim. On the first day of trial, the court heard oral argument on the defendant's motion in limine to preclude the plaintiff's experts. The defendant read into the record the standard interrogatories that had been sent to the plaintiff nearly five years before trial and her answers, which disclosed only the experts' names and occupations. The court stated that the plaintiff's answers to the standard interrogatories were inadequate. The court stated that the plaintiff's late disclosure would prejudice the defendant because she had failed to provide any notice of her purported expert testimony. When the plaintiff offered to give the defendant copies of medical reports, the court stated, "[t]o hand over a medical report to defense counsel in the middle of trial simply is unacceptable. It . . . was a clear violation of the rules of practice, and I think it would result in a great deal of prejudice to the defendant if I were to permit that." The plaintiff conceded at the hearing that "there is a good argument that the [interrogatory] answers did not comply with Practice Book § 13-4 (4)."

Once the court made the determination that the plaintiff had failed to provide disclosure to the defendant that showed a causal relationship between her injuries and the automobile accident,...