Peatie v. Wal-Mart Stores, Inc., No. 28387.

• Court: Appellate Court of Connecticut
• Writing for the Court: Dupont
• Citation: 112 Conn.App. 8,961 A.2d 1016
• Parties: Rita PEATIE v. WAL-MART STORES, INC.
• Docket Number: No. 28387.
• Decision Date: 06 January 2009

961 A.2d 1016 112 Conn.App. 8 Rita PEATIE
v.
WAL-MART STORES, INC. No. 28387. Appellate Court of Connecticut. Argued September 25, 2008. Decided January 6, 2009.

[961 A.2d 1019]

Heidi J. Alexander, for the appellant (plaintiff).

Anita M. Varunes, with whom was Timothy P. Knotts, for the appellee (defendant).

FLYNN, C.J., and LAVINE and DUPONT, Js.

DUPONT, J.

112 Conn.App. 10

In this negligence action, the plaintiff, Rita Peatie, appeals from the judgment of the trial court, rendered after a jury verdict in favor of the defendant, Wal-Mart Stores, Inc. The plaintiff claims on appeal that the court improperly (1) bound her "in lieu of" attorney to the scheduling order agreed to by her previous attorney, (2) refused to lift a protective order, (3) excluded some of the testimony of her expert from the jury's consideration, (4) included a jury instruction regarding the calculation of economic damages and (5) was biased in favor of the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiff's appeal. The plaintiff instituted this negligence action against the defendant on October 12, 2004. In her amended complaint, which is the operative complaint, the plaintiff alleged that while shopping at the defendant's store on October 10, 2002, she suffered multiple injuries when a metal cylinder unit attached to a vaulted ceiling fell and hit her on the head, neck and left shoulder. The plaintiff further alleged that the metal cylinder attached to the ceiling was in the control of the defendant and that the defendant was negligent in that it knew or should have known that the cylinder unit was not properly attached to the ceiling.

The evidentiary portion of the trial began on December 5, 2006. On December 8, 2006, the jury returned a verdict in favor of the defendant. The court accepted

112 Conn.App. 11

the verdict and rendered judgment in favor of the defendant. The plaintiff did not make a motion to set aside the verdict.¹

961 A.2d 1020

This appeal followed.

I

The plaintiff's first claim is that the court improperly bound her "in lieu of" counsel to the scheduling orders agreed to by her previous counsel when it denied her May 12, 2006 motion for a continuance of the discovery deadlines. We disagree.

The following additional facts are relevant to the plaintiff's claim. On March 15, 2005, approximately five months from the date the action was initiated, a scheduling order was agreed to by the plaintiff's previous counsel and by counsel for the defendant. On August 1, 2005, new counsel for the plaintiff entered the case in lieu of her former counsel. On September 6, 2005, the plaintiff's new counsel made a motion for a 120 day extension of the entire scheduling order. The court did not rule on that motion. On January 17, 2006, plaintiff's counsel filed a motion to continue a January 27, 2006 arbitration hearing date on the ground that discovery was not complete. The court granted the motion and continued the arbitration date to May 12, 2006. On that day, counsel filed another motion to continue the arbitration hearing on the ground that discovery still was not complete. The court denied that motion, and the arbitration hearing proceeded as scheduled.²

112 Conn.App. 12

We first set forth our standard of review. "The trial court has a responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice." (Internal quotation marks omitted.) State v. Stevenson, 53 Conn.App. 551, 562, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999). In addition, "matters involving judicial economy, docket management [and control of] courtroom proceedings ... are particularly within the province of a trial court." (Internal quotation marks omitted.) Marshall v. Marshall, 71 Conn.App. 565, 574, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). Accordingly, "[a] trial court holds broad discretion in granting or denying a motion for a continuance. Appellate review of a trial court's denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances." (Internal quotation marks omitted.) Id.

"A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made.... To prove an abuse of discretion, an appellant must show that the trial court's denial of a request for a continuance was [unreasonable or] arbitrary.... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is

961 A.2d 1021

denied." (Emphasis omitted; internal quotation marks omitted.) State v. Ross V., 110 Conn.App. 1, 7, 953 A.2d 945, cert. denied, 289 Conn. 939, 958 A.2d 1247 (2008).

In the present case, the May 12, 2006 motion for a continuance was the plaintiff's second such motion. The plaintiff's first motion for a continuance was granted by

112 Conn.App. 13

the court and gave the plaintiff four additional months to complete discovery. In State v. Marshall, 51 Conn. App. 469, 473, 722 A.2d 1221, cert. denied, 248 Conn. 901, 732 A.2d 178 (1999), we held that "[s]ince the trial court had already granted one continuance, we find no abuse of discretion in the court's refusal to grant the [party's] motion for a further continuance." See State v. Yednock, 14 Conn.App. 333, 344-45, 541 A.2d 887 (1988) (no abuse of discretion where court refused to grant further continuance after already granting one). Moreover, the plaintiff did not make the motion for a continuance until the morning the arbitration hearing was set to proceed. At that point, it would have been unfair to the defendant and to the arbitrator to postpone the hearing for a second time. We therefore conclude that the court acted within its discretion when it denied the plaintiff's May 12, 2006 motion for a continuance.

II

The plaintiff's second claim is that the court, Aurigemma, J., abused its discretion when it denied her motion in limine to lift a protective order that prevented her from deposing the defendant's custodian of records. We disagree.

The following additional facts are relevant to the plaintiff's claim. On October 13, 2006, the defendant filed a motion for a protective order in connection with the plaintiff's September 27, 2006 deposition notice and subpoena to the defendant's custodian of records to acquire photographs, records and reports held by the defendant regarding the plaintiff's alleged injury. The defendant asserted two grounds in support of its motion: (1) the proceedings in the case had been stayed, except to allow the defendant to depose the plaintiff's causation expert, David Kalayjian, an orthopedic surgeon, by a prior order of the court, Dubay, J., dated September 26, 2006; and (2) the plaintiff did not certify

112 Conn.App. 14

a copy of the notice of deposition to the defendant's attorney. The plaintiff did not file an objection to the motion, and it was granted by the court, Aurigemma, J., on October 30, 2006.

On December 5, 2006, the first day of the evidentiary portion of the trial, the plaintiff filed a motion in limine to lift the defendant's protective order on the ground that no annoyance, embarrassment, oppression, or undue burden or expense were experienced by the defendant. The plaintiff also argued that because the defendant had conducted discovery beyond the guidelines set by Judge Dubay's order, it would only be fair to allow her to do so as well. The court, Aurigemma, J., denied the plaintiff's motion, stating: "I just don't think [I've] heard any good reason why these . . . couldn't have been or weren't obtained in discovery well before September [2006], at which time, I would assume the discovery deadlines had long passed."

"[T]he [trial] court's inherent authority to issue protective orders is embodied in Practice Book § 13-5³. ..."

961 A.2d 1022

Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221 n. 59, 884 A.2d 981 (2005). "[D]iscovery related protective orders ... are injunctive in nature. Such orders have both the force and effect of an injunction, and serve a similar equitable purpose, namely, to regulate prospectively the conduct of the parties, either by restraining them from acting or by requiring them to act under circumstances that, if not so regulated, could lead to unduly harmful consequences. ... [O]nce issued, protective orders, like injunctions, need not remain in place permanently ...

112 Conn.App. 15

and their terms are not immutable. It is well-settled that a trial court retains the power to modify or lift a protective order that it has entered. ... Indeed, courts and commentators seem unanimous in finding ... [that courts have] an inherent power to modify discovery-related protective orders ... when circumstances justify." (Citation omitted; internal quotation marks omitted.) Id., at 214-15, 884 A.2d 981.

The use of protective orders and the extent of discovery is within the discretion of the trial judge. See Lougee v. Grinnell, 216 Conn. 483, 491, 582 A.2d 456 (1990), rev'd on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999); State v. Jacobs, 70 Conn.App. 488, 502, 802 A.2d 857 (2002), vacated and remanded, 265 Conn. 396, 828 A.2d 587 (2003); Verderame v. Pryor, Superior Court, judicial district of New Britain, Docket No. CV-99-0496040-S, 2001 WL 400361 (January 24, 2001) (Kocay, J.). "We have long recognized that the granting or denial of a discovery request ... is subject to reversal only if such an order constitutes an abuse of that discretion. ... [I]t is only in rare...