Menna v. Jaiman, (AC 23804).

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

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.

80 Conn. App. 132

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

80 Conn. App. 133

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

80 Conn. App. 134

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.

80 Conn. App. 135

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

80 Conn. App. 136

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...