Smart v. Corbitt, 30771.

• Decision Date: 01 March 2011
• Docket Number: No. 30771.,30771.
• Citation: 14 A.3d 368,126 Conn.App. 788
• Court: Connecticut Court of Appeals
• Parties: Jerry SMART, Sr., Administrator (Estate of Alfred Smart)v.Jack CORBITT et al.

126 Conn.App. 788

14 A.3d 368

Jerry SMART, Sr., Administrator (Estate of Alfred Smart)

v.Jack CORBITT et al.

No. 30771.

Appellate Court of Connecticut.

Argued Nov. 8, 2010.Decided March 1, 2011.

Christi M. Carrano, North Haven, for the appellant (plaintiff).Michael P. Del Sole, New Haven, for the appellee (defendant Carminer Lavache).Audrey C. Kramer, assistant corporation counsel, for the appellee (defendant Joseph Cappucci et al.).DiPENTIMA, C.J., and GRUENDEL and FOTI, Js.DiPENTIMA, C.J.

The plaintiff, the administrator of the estate of Alfred Smart, appeals from the judgment of the trial court, rendered on a directed verdict in favor of the defendant police officer, Carminer Lavache, and on a jury verdict in favor of the defendants, fire marshal Joseph Cappucci and the city of New Haven (city). The plaintiff raises a myriad of issues, only some of which this court finds reviewable. On appeal, the plaintiff claims that the court improperly (1) granted the defendants' motions to preclude the plaintiff's experts, (2) directed the jury to return a verdict in favor of Lavache, (3) permitted counsel for Lavache to misstate the law of proximate cause during voir dire examination, (4) determined that testimony and evidence the plaintiff sought to adduce was irrelevant, (5) denied his request to provide an interrogatory to the jury concerning negligence and (6) denied his motion to set aside the verdict. We affirm the judgment of the trial court.

This case arises out of an unfortunate and fatal house fire. On March 5, 2004, the decedent, Alfred Smart, died of smoke inhalation during a fire at 586 Orchard Street, New Haven (premises). On March 28, 2005, the decedent's brother, Jerry Smart, Sr., acting as the administrator of the estate, commenced a wrongful death action by filing a seventeen count complaint alleging negligence or reckless conduct on the part of eight defendants.¹ The appeal presently before this court concerns only three defendants: Cappucci, Lavache and the city.²

[14 A.3d 373 , 126 Conn.App. 792]

The following procedural history is relevant to our analysis of the plaintiff's claims. In pertinent part, the plaintiff's second amended complaint alleged liability on the part of: (1) Cappucci, for failing to conduct a yearly inspection of the premises' fire detection devices as required by General Statutes (Rev. to 2003) § 29–305,³ (2) Lavache, for failing to provide the address of the fire to the New Haven fire department in an accurate manner,⁴ and (3) the city, for negligence based on the actions of Lavache and for failing to enforce the requirements of § 29–305. ⁵

After a pretrial conference held on December 6, 2007, the court issued a scheduling order requiring the depositions of all fact witnesses to be completed by March 4, 2008, the disclosure of the plaintiff's expert witnesses by July 1, 2008, the disclosure of the defendants' expert witnesses by September 1, 2008, and a trial date “on or about October 1, 2008.” On December 14, 2007, the court set October 28, 2008, as the date for commencement of trial. Thereafter, the plaintiff sought five modifications of this scheduling order. On February 29, April 4, and May 29, 2008, the court granted the plaintiff's motions to modify the scheduling order to extend the deadline in which to depose fact witnesses. Likewise, the court granted the plaintiff's June 30, 2008 motion to modify the scheduling order to extend the deadline for disclosure of experts from July 1 until August 15, 2008.

On August 15, 2008, the plaintiff filed a second motion to extend the deadline for the disclosure of his expert witnesses to September 30, 2008, claiming that the delayed receipt of transcripts from the depositions of fact witnesses had inhibited his ability to timely disclose his experts. The court denied this motion. On August 28, 2008, the plaintiff then filed a motion for a continuance, seeking to have the October 28, 2008 trial date continued for six months, claiming again that the delayed receipt of transcripts from fact witness depositions inhibited his ability to disclose experts. The court denied this motion, as well as the plaintiff's subsequent motion to reconsider.

The plaintiff then disclosed his experts on September 19 and 26 and on October 3, 2008. Thereafter, the defendants moved to preclude these experts from testifying at trial, claiming that the plaintiff's disclosure of his experts over one month late and approximately one month prior to the commencement of trial was in violation of Practice Book (2008) § 13–4(4), caused them prejudice and would interfere with the orderly progress of trial. On October 28, 2008, prior to the commencement of jury selection, the court heard argument from counsel before granting the defendants' motions to preclude the plaintiff's experts from testifying.⁶ The court also concluded, over the plaintiff's objection, that the defendants did not share a unity of interest and allowed counsel for Lavache four peremptory challenges and counsel for police emergency dispatcher Maria Sterling, police chief Francisco Ortiz, fire chief Michael Grant,⁷ the city and Cappucci four peremptory challenges each.

Thereafter, the plaintiff presented his case to the jury. After the plaintiff rested, the defendants and Sterling, Ortiz and Grant moved for directed verdicts. After hearing argument from counsel, the court granted Lavache's motion for a directed verdict, determining that the plaintiff's evidence was inadequate to establish that Lavache's conduct was the proximate cause of the decedent's death and that Lavache was entitled to governmental immunity for his alleged negligence.⁸ Similarly, the court ordered a directed verdict in favor of Ortiz, Grant and Sterling but denied Cappucci's motion for a directed verdict.

The plaintiff's allegations against Cappucci and the city were submitted to the jury on December 2, 2008. On December 4, 2008, the jury returned a verdict in favor of Cappucci and the city. The plaintiff moved to set aside the verdict and sought an order for a new trial with respect to the defendants. The court denied the plaintiff's motions, and this appeal followed. Additional facts will be set forth where necessary.

On appeal, the plaintiff makes eleven claims of error, five of which we do not reach because the claims are either not preserved,⁹ inadequately briefed or inadequately supported by the record.¹⁰

I

The plaintiff first claims that the court improperly granted the defendants' motions to preclude the plaintiff's use of expert testimony. The plaintiff acknowledges that he disclosed his experts outside of the scheduling deadline imposed by the court; however, he argues that testimony from his experts was necessary to establish that the fire department's delayed response to the fire was the proximate cause of the decedent's death, and that the delay in disclosing his experts caused no prejudice to the defendants and would have caused only minor interference with the progress of trial. Thus, the plaintiff claims that the court abused its discretion because the consequences of preclusion were disproportionate to the consequences of his violation. We are not persuaded.

We first set forth our standard of review. In Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d 1115 (2001), our Supreme Court determined that to withstand scrutiny on appeal, a court's order of sanctions for a violation of discovery must satisfy three requirements: “First, the order to be complied with must be reasonably clear.... Second, the record must establish that the order was in fact violated ... [and] [t]hird, the sanction imposed must be proportional to the violation.” The plaintiff challenges the propriety of the court's sanction with respect to the third requirement, which we review for an abuse of discretion. See id., at 18, 776 A.2d 1115.

“There is no hard and fast rule by which an abuse of discretion may be determined but, in general, for an exercise of discretion not to amount to an abuse, it must be legally sound and there must be an honest attempt by the court to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice.” (Internal quotation marks omitted.) Sullivan v. Yale–New Haven Hospital, Inc., 64 Conn.App. 750, 754, 785 A.2d 588 (2001). “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.... Never will the case on appeal look as it does to a [trial court] ... faced with the need to impose reasonable bounds and order on discovery.” (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 15–16, 776 A.2d 1115.

After a thorough review of the record and the court's reasoning, we conclude that the court did not abuse its discretion. The record reveals that the court cited to the proper rule of procedure ¹¹ and determined that not to preclude the experts, when they were disclosed only four to five weeks prior to jury selection, would cause undue prejudice to the defendants in that they would be required to depose the plaintiff's three experts, then locate, retain and depose their own experts, a task that was estimated to require a continuance of trial for approximately four months. Such a continuance, the court concluded, would cause undue interference with the orderly progression of trial.

The court noted that the plaintiff's complaint setting forth his legal theory against Lavache was filed in 2005 and that no set of facts had changed during the three and one-half years the case had been pending that would have hindered the plaintiff's ability to retain and disclose his experts. The disclosures filed by the plaintiff reveal that his experts were to testify regarding the postmortem...