Mulrooney v. Wambolt

• Decision Date: 05 June 1990
• Docket Number: No. 13893,13893
• Citation: 575 A.2d 996,215 Conn. 211
• Court: Connecticut Supreme Court
• Parties: Katherine M. MULROONEY v. Christie WAMBOLT.

Page 996

575 A.2d 996

215 Conn. 211

Katherine M. MULROONEY v. Christie WAMBOLT.

No. 13893.

Supreme Court of Connecticut.

Argued April 6, 1990.

Decided June 5, 1990.

Michael P. Del Sole, New Haven, for appellant (named defendant).

Roger Sullivan, Branford, for appellee (plaintiff).

Before SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

SHEA, Associate Justice.

The dispositive issue in this appeal is whether the trial court abused its discretion by precluding the defendant from calling an expert witness to testify because of the defendant's failure to disclose timely that she intended to call the witness as an expert. The plaintiff, Katherine M. Mulrooney, brought an action to recover damages for personal injuries sustained in an automobile accident involving the defendant, Christie Wambolt. During the discovery procedures, the defendant failed to disclose in her answers to the plaintiff's interrogatories that she intended to call Franklin Robinson, a neurologist, as an expert witness. It was not until jury selection, when the defendant's counsel announced his intent to call Robinson as a witness, that the plaintiff was notified that Robinson would be called as an expert. On the first day of testimony, the plaintiff filed a motion in limine to preclude the defendant from calling Robinson as an expert, which the trial court granted. We find no error.

The following facts are undisputed. On January 11, 1983, the plaintiff was proceeding in a northerly direction on South Grove Street in Meriden when she collided with the defendant's automobile traveling in an easterly direction on West Main Street. The accident was caused by the negligence of the defendant in the operation of her motor vehicle. In the plaintiff's amended complaint, filed July 20, 1989, she alleged that she had suffered and would continue to suffer injuries of her chest, cervical spine, shoulder region and shock to her nervous system. In addition, the plaintiff alleged that, as a result of these injuries, she had incurred and would incur medical and hospital expenses and would be unable to perform household and occupational duties as she did prior to the accident.

In November, 1985, the defendant requested, pursuant to Practice Book § 229, that the plaintiff submit to an independent medical examination on January 21, 1986, to be conducted by Robinson. On January 22, 1986, Robinson forwarded a detailed report to the defendant. The case was claimed to the trial list on February 4, 1986.

The plaintiff served her first set of interrogatories and requests for production on the defendant on March 27, 1987. On April 24, 1987, the defendant filed her objections to this disclosure request and filed a motion to extend the time to answer. The record does not disclose that any action was taken on the defendant's objections to the plaintiff's first set of interrogatories ¹ and, therefore, we assume that the plaintiff withdrew the first set.

The plaintiff filed notice that she had served the defendant with a second set of interrogatories and requests for production on May 14, 1987. On July 15, 1987, the plaintiff filed a motion for "Rule 231 orders" to compel the defendant to answer the plaintiff's second set of interrogatories and requests for production. The trial court, Burns, J., on August 31, 1987, ordered a default to be entered if the defendant did not answer by September 14, 1987. On September 21, 1987, the trial court, Flanagan, J., granted the defendant's motion for an extension of time to October 14, 1987, to answer the plaintiff's interrogatories and requests for production. Following a pretrial conference, the plaintiff filed a second motion for "Rule 231 orders" on January 11, 1988, at which time the trial court, Burns, J., ordered the defendant to answer the plaintiff's interrogatories within two weeks from January 11, 1988.

On February 9, 1988, the defendant filed her answers to the plaintiff's second set of interrogatories and requests for production. Interrogatory No. 2 requested the defendant to give the name of any expert the defendant expected to call as a witness, state the subject matter of his testimony, and summarize each of his opinions. The defendant responded: "No expert contemplated at this time." In response to a request to produce any medical reports of experts concerning the plaintiff, the defendant furnished a copy of Robinson's medical report.

On May 3, 1988, the defendant filed a request to have the plaintiff submit to an independent medical examination to be conducted by another physician, Alan H. Goodman, and the plaintiff filed an objection on the ground that she had already been examined by an independent medical examiner ² selected by the defendant. On May 23, 1988, the trial court, Berdon, J., denied the defendant's request.

During jury selection, on June 29, 1989, the defendant's counsel for the first time announced his intent to call Robinson as an expert witness. On the day testimony began, July 17, 1989, the plaintiff made a motion in limine to preclude the defendant from calling Robinson to testify as an expert. The trial court, Hodgson, J., granted the plaintiff's motion on the basis of Practice Book § 220(D). ³ The case proceeded to trial on the issue of damages and the jury returned a verdict in the amount of $191,926.53 for the plaintiff.

On appeal, the defendant contends that the trial court (1) erred in applying Practice Book § 220(D), and (2) abused its discretion in precluding the defendant from calling Robinson to testify as an expert witness.

We must first address the threshold question of whether the trial court erred in applying Practice Book § 220(D). Section 220(D) became effective eight months after the case was claimed to the trial list. The defendant asserts that, although procedural amendments to the Practice Book apply to pending cases, an amendment should not apply if considerations of "good sense and justice dictate that it not be so applied." The defendant asserts that the trial court's application of § 220(D) infringed upon her ability to defend the claim against her.

It is generally presumed that legislation is intended to operate prospectively "[e]xcept as to amending statutes that are procedural in their impact...." Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981); Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989). Procedural statutes and rules of practice ordinarily apply "retroactively to all actions whether pending or not at the time the statute [or rule] became effective, in the absence of any expressed intent to the contrary." Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 196, 286 A.2d 308 (1971); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525, 562 A.2d 1100 (1989); Darak v. Darak, supra; Camputaro v. Stuart Hartford Corporation, 180 Conn. 545, 556-57, 429 A.2d 796 (1980). We have noted, however, that a procedural statute will not be applied " ' "retroactively if considerations of good sense and justice dictate that it not be so applied." ... Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58 [1968].' (Citations omitted.) American Masons' Supply Co. v. F.W. Brown Co., [174 Conn. 219, 223, 384 A.2d 378 (1978) ]." State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); State v. Paradise, 189 Conn. 346, 350, 456 A.2d 305 (1983). Rules of statutory construction pertaining to the application of statutory enactments and amendments apply with equal force to Practice Book rules. See Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); Camputaro v. Stuart Hartford Corporation, supra.

Section 220 was enacted in 1978 following the repeal of General Statutes § 52-159a in 1976 which had provided that a plaintiff could not be compelled to disclose the names and reports of his expert witness. 1 W. Moller, Connecticut Practice § 220(D). Paragraph (D) was added eight years later over "vociferous" bar opposition and became effective October 1, 1986. Id. Paragraph (D) is a procedural rule that sets out a time limitation for each party in a civil action to disclose the name of an expert witness he intends to use, 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. A plaintiff must disclose this information within sixty days from the date the case is claimed to a trial list and a defendant must do so within 120 days from such date. If a party fails to disclose the name of any expert expected to testify at trial, "such expert shall not testify except in the discretion of the court for good cause shown." Practice Book § 220(D).

Since the case was claimed to a trial list on February 4, 1986, eight months prior to the effective date of the rule, the defendant could not have satisfied the time constraints in § 220(D). The defendant does not, however, offer any reason why she did not comply with the rule within the two years and nine months that elapsed between October 1, 1986, the effective date of the rule, and June 29, 1989, when the defendant's counsel during jury selection first announced his intent to call Robinson as a witness. Although the defendant's counsel has characterized in his brief his failure to disclose as an "inadvertent omission," the defendant's counsel, during oral argument before this court, stated that it was a policy of his firm not to disclose independent medical examinations and it was a practice he had seen with other firms. Such an admission is equivalent to a wilful disregard of the rules of practice. If a party to an action chooses to disregard the rules of practice any claimed "injustice" that has occurred through the imposition of a sanction is the result of the party's own failure to act.

Furthermore, the defendant was not prejudiced by the trial court's retroactive application of Practice Book § 220(D)....