Pie Plate, Inc. v. Texaco, Inc., s. 11481

• Decision Date: 02 August 1994
• Docket Number: 11483,Nos. 11481,s. 11481
• Citation: 645 A.2d 1044,35 Conn.App. 305
• Court: Connecticut Court of Appeals
• Parties: PIE PLATE, INC., et al. v. TEXACO, INC.

Page 1044

645 A.2d 1044

35 Conn.App. 305

PIE PLATE, INC., et al. v. TEXACO, INC.

Nos. 11481, 11483.

Appellate Court of Connecticut.

Argued April 28, 1994.

Decided Aug. 2, 1994.

Neil F. Murphy, Jr., with whom was Lawrence J. Kiel, Farmington, for appellant (named plaintiff).

Francis G. Pennarola, Danbury, for appellant (plaintiff Frank Devino).

Paul D. Sanson, with whom, on the brief, were Gregory T. D'Auria and Sheila Huddleston, Hartford, for appellee (defendant).

Before EDWARD Y. O'CONNELL, LAVERY and LANDAU, JJ.

LAVERY, Judge.

The plaintiffs, Pie Plate, Inc. (Pie Plate), and Frank Devino, appeal from a judgment in favor of the defendant, Texaco, Inc. (Texaco), in their tort action arising out of a gasoline contamination of commercial property in Waterbury. Both plaintiffs assert that the trial court improperly (1) excluded the testimony of an expert witness under Practice Book § 220(D), and (2) restricted the scope of a witness' testimony. In addition, Pie Plate claims that the trial court improperly (1) limited its attempt to demonstrate an expert witness' bias, (2) refused to instruct the jury on adverse inference and damages as requested, and (3) instructed the jury on the applicable statute of limitations and theory of superseding cause. Frank Devino also asserts that the trial court improperly refused to take judicial notice of Devino's withdrawal of the case he had brought against Merit, Inc. (Merit).

Devino owns commercial property in Waterbury that was contaminated by underground gasoline. Pie Plate operated a restaurant on the premises until forced to close in 1985 by the gasoline contamination. A gasoline station owned by Merit adjoined the property; a Texaco gasoline station was located across the street from the property.

After the contamination, Devino sued Merit alleging damages resulting from negligent discharge of gasoline onto his property. Merit claimed that Texaco was responsible for the contamination. Devino and Pie Plate sued Texaco in 1986 on the same ground. Texaco blamed Merit. After seven years of discovery and motions, the parties presented their cases to a jury during a four week trial. Near the end of the Texaco trial, Devino withdrew his case against Merit. The jury found that Texaco had been negligent but had not been a substantial factor in causing the plaintiffs' damages. The plaintiffs appealed.

I

The plaintiffs' first claim involves the defendant's pretrial motion to preclude expert testimony by any witnesses not disclosed pursuant to Practice Book § 220(D). ¹ The defendant sought to prevent the plaintiffs from calling Dan Buzea as an expert. The trial court found that Buzea had been retained as an expert witness by Merit in Devino's case against Merit. The trial court also found that the plaintiffs had known of Buzea's availability and his opinion but had failed to comply with Practice Book § 220(D). Therefore, the trial court granted the defendant's motion.

On appeal, the plaintiffs initially assert that Practice Book § 220(D) does not apply to expert witnesses called in rebuttal. This argument is legally incorrect and factually inapposite. Practice Book 220(D) applies to rebuttal expert witnesses. Roberto v. Honeywell, Inc., 33 Conn.App. 619, 624, 637 A.2d 405 (1994). Furthermore, the trial court ruled on the motion before the trial began and without knowing that Buzea would be a rebuttal witness. Thus, even if Practice Book § 220(D) did not apply to rebuttal witnesses, that fact pattern was not presented to the trial court.

The plaintiffs also assert that the trial court abused its discretion in excluding Buzea. Practice Book § 220(D) provides that if the name of any expert is not disclosed within sixty days of the date the case is claimed to the trial list, the expert shall not testify except in the discretion of the trial court for good cause shown. The rule provides a safety valve by making the determination of whether such an expert testifies a discretionary decision to be made by the trial court in light of good cause. See Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993); Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992); Roberto v. Honeywell, Inc., supra, 33 Conn.App. at 625, 637 A.2d 405.

" 'Neither § 220(D) nor the cases interpreting it define what constitutes "good cause." ' " Knock v. Knock, supra, 224 Conn. at 782-83, 621 A.2d 267. "[T]he scope of the trial court's discretion required it to review the intent and the reasons given by the plaintiff for not disclosing [an] expert witness within the time frame set forth in § 220(D), and to determine if those reasons, particular to this case, amounted to good legal excuse." Roberto v. Honeywell, Inc., supra, 33 Conn.App. at 626, 637 A.2d 405. " 'In determining whether the trial court abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court's decision.' " Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn.App. 702, 707, 638 A.2d 44 (1994).

The record reveals that the trial court performed the appropriate review. The trial court found that the plaintiffs had long been aware of a report prepared by Buzea that was favorable to their position and that Buzea had been available as a witness for at least three months. Moreover, the plaintiffs' tardy disclosure meant either that the trial would have to have been further delayed or that the defendant would have been deprived of reasonable time in which to prepare for Buzea's testimony. Because the trial court believed that the plaintiffs had not presented a reasonable explanation for their failure to comply with the rule, the court granted the motion. Our review of the record persuades us that there was no abuse of discretion.

II

The plaintiffs next assert that the trial court improperly limited the scope of testimony offered in rebuttal. During the defendant's case-in-chief, one of the defendants experts, Dennis Waslenchuk, relied on a report prepared by Buzea. On rebuttal, the plaintiff offered Buzea's testimony regarding his report and his opinion regarding the source of the contamination on the basis of the report. The trial court again refused to permit Buzea to testify as an expert. The trial court did, however, grant permission for him to testify to the facts underlying his report. Finally, the trial court denied the plaintiffs permission to have Buzea testify regarding facts that he learned subsequent to the preparation of the report. The plaintiffs chose not to present Buzea at all.

The admission of rebuttal evidence lies within the sound discretion of the trial court. Shaham v. Capparelli, 219 Conn. 133, 134, 591 A.2d 1269 (1991). " '[T]he usual rule will exclude all evidence which has not been made necessary by the opponent's case in reply.' " Id., at 136-37, 591 A.2d 1269 (Shea and Covello, Js., dissenting), quoting 6 J. Wigmore, Evidence (4th Ed.) § 1873, p. 672. "The policy behind restrictions on the presentation of rebuttal testimony is that a plaintiff is not entitled to a second opportunity to present evidence that should reasonably have been presented in [its] case-in-chief." Shaham v. Capparelli, supra, at 136, 591 A.2d 1269. "The issue on appeal is not whether any one of us, sitting as the trial court, would have permitted the disputed testimony to be introduced. The question is rather whether the trial court ... abused its discretion in not allowing the rebuttal testimony...." Id., at 134, 591 A.2d 1269; see Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Gemme v. Goldberg, 31 Conn.App. 527, 538, 626 A.2d 318 (1993).

We conclude that the trial court did not abuse its discretion by preventing Buzea from testifying as an expert on rebuttal. The plaintiffs had not disclosed him as a potential expert witness prior to trial. Thus, absent adequate time in which to prepare, the defendant would have been prejudiced. The trial court refused to accommodate the plaintiffs' failure to disclose their experts in a timely manner by prolonging a month long trial that was the culmination a seven year old case. The plaintiffs were not prejudiced by this ruling because they could have presented Buzea as a fact witness. That would have allowed them to establish the factual predicate for the opinion of their expert, John Raabe, who could have been recalled. Therefore, we conclude that the trial court did not abuse its discretion by refusing to permit the plaintiffs to achieve on rebuttal what had been denied them during their case-in-chief.

The trial court also properly restricted the facts to which Buzea would have been permitted to testify. The defendant's expert used Buzea's report as grounds for his opinion that the contamination was caused by Merit. The plaintiffs' sought to have Buzea testify to facts that were not discovered before the report was prepared, that were not part of the report, and on which the defendant's expert did not rely. Thus, this testimony was not made necessary by the defendant's case. Moreover, the plaintiffs knew of these facts and could have had Buzea testify as a fact witness regarding them during the plaintiffs' case-in-chief. The plaintiffs could then have had Raabe testify as an expert and present his opinion based on those facts. The plaintiffs did neither. The trial court did not abuse its discretion by denying the plaintiffs a second opportunity to present evidence that should reasonably have been included its case-in-chief.

Finally, we note that the relevance of these facts is suspect. The contamination underlying this case occurred sometime prior to 1985. The plaintiffs sought to have Buzea testify to tests he performed in late 1991 after his report was completed. The plaintiffs did not demonstrate any objective indicia linking the tests done in 1991 to the source of the contamination six years earlier. We conclude, therefore, that the trial court did not abuse its discretion when it restricted the scope of Buzea's...