Wagner v. Clark Equipment Co.

• Decision Date: 29 January 2002
• Docket Number: (SC 16505)
• Citation: 788 A.2d 83,259 Conn. 114
• Court: Connecticut Supreme Court
• Parties: KEVIN WAGNER ET AL. v. CLARK EQUIPMENT COMPANY, INC, ET AL.

259 Conn. 114

788 A.2d 83

KEVIN WAGNER ET AL. v. CLARK EQUIPMENT COMPANY, INC, ET AL.

(SC 16505)

Supreme Court of Connecticut.

Argued September 13, 2001.

Officially released January 29, 2002.

Borden, Norcott, Katz, Vertefeuille and Zarella, JS. Wesley W. Horton, with whom were Kimberly A. Knox, and, on the brief, Karen L. Dowd, Daniel J. Krisch and Colleen A. Madden, legal intern, for the appellants (defendants).

Jacques J. Parenteau, for the appellee (named plaintiff).

Jeremy G. Zimmermann, Mary A. Wells, pro hac vice, L. Michael Brooks, Jr., pro hac vice, and Hugh F. Young, Jr., pro hac vice, filed a brief for the Product Liability Advisory Council, Inc., as amicus curiae.

Michael P. Koskoff, Antonio Ponvert III, Robert B. Adelman and Jeffrey Robert White, pro hac vice, filed a brief for the Connecticut Trial Lawyers Association et al. as amicus curiae.

Opinion

ZARELLA, J.

The plaintiff,¹ Kevin Wagner, brought this product liability action against the defendants, Clark Equipment Company, Inc. (Clark), and Summit Handling Systems, Inc., doing business as Clarklift of Connecticut (Summit), for injuries sustained when a forklift manufactured by Clark and distributed by Summit crushed the plaintiffs left foot. The jury returned a verdict in favor of the plaintiff in the amount of $3 million, and the trial court, Hurley, J., rendered judgment in accordance with the verdict. The defendants appealed from that judgment and, in an earlier decision, this court reversed the judgment of the trial court and remanded the case for a new trial. Wagner v. Clark Equipment Co., 243 Conn. 168, 201, 700 A.2d 38 (1997). On remand, the jury returned a verdict in favor of the plaintiff in the amount of $9,412,382.56, and the trial court, Koletsky, J., rendered judgment in accordance with that verdict, from which the defendants appealed.²

The dispositive issue in this appeal is whether the trial court, Koletsky, J., improperly limited the testimony of the defendants' expert witness to the subject matter specified in the expert witness disclosure filed after the first trial but before the second trial, on the basis of the trial court's determination that that disclosure superseded an earlier expert witness disclosure filed before the first trial. Additionally, the plaintiff urges us to consider, in the event that we order a new trial, whether the trial court improperly denied his request for leave to amend his complaint³ and improperly excluded certain evidence because it was outside the scope of the allegations contained in the operative complaint. We conclude that the trial court improperly limited the testimony of the defendants' expert witness to the subject matter specified in the disclosure filed after the first trial but before the second trial.⁴ We also conclude that the trial court, Handy, J., improperly denied the plaintiffs request for leave to amend his complaint.⁵ Accordingly, we reverse the judgment of the trial court.

The following relevant facts and procedural history are undisputed. The plaintiff was employed as a carpenter for the Electric Boat Division of General Dynamics Corporation (Electric Boat) in Groton. On October 25, 1989, the plaintiff was directing an overhead crane operator from the ground when a forklift backed up and struck him from behind, knocking him to the ground. The forklift ran over the plaintiffs left foot, causing serious injuries that eventually resulted in the amputation of the plaintiffs left leg below the knee.

The plaintiff brought this product liability action pursuant to General Statutes § 52-572m.⁶ Specifically, the plaintiff alleged that the forklift "was defective and unreasonably dangerous" because it lacked, inter alia: (1) a mirror "on the right side of the [forklift] cab"; (2) a strobe light that "would have directed bright, blinking light directly at [the plaintiff]"; and (3) a back-up alarm that sounded "sufficiently distinct to warn [the plaintiff]" The jury returned a verdict in favor of the plaintiff. The defendants filed several posttrial motions, including a motion to set aside the verdict and for a new trial, and a motion to have judgment rendered in accordance with the defendants' motion for a directed verdict. The trial court denied all of the defendants' posttrial motions and rendered judgment in accordance with the jury's verdict. This appeal followed.

I

The defendants claim that the trial court improperly limited the testimony of their expert witness to the subject matter specified in their expert witness disclosure filed after the first trial but before the second trial. The defendants argue that this disclosure, which was preceded by an earlier expert-witness disclosure filed before the first trial, did not displace the first disclosure, but, rather, supplemented it, and, therefore, their expert should have been allowed to testify concerning the subject matter contained in the first disclosure. The plaintiff, on the other hand, contends that the trial court properly limited the testimony of the defendants' expert to the subject matter contained in the second disclosure. We agree with the defendants.

The following additional facts are necessary to the disposition of the defendants' claim. In 1993, before the first trial, the defendants disclosed Walter Girardi as one of their expert witnesses. The defendants disclosed that Girardi was to testify on the issue of whether the forklift involved in the plaintiffs accident was defectively designed.⁷ In 1998, after this court reversed the first trial court's judgment and remanded the case for a new trial; Wagner v. Clark Equipment Co., supra, 243 Conn. 201; but prior to the commencement of the new trial, the defendants again disclosed Girardi as an expert who they were expecting to call during the new trial. In their second disclosure, dated June 30, 1998, the defendants stated that Girardi would testify as to "safe and proper material handling practices in industrial settings [such as] ... Electric Boat...."⁸ The second disclosure did not indicate whether it was supplementary to or in lieu of the first disclosure.

Subsequently, the plaintiff filed a motion in limine in which he stated, inter alia, that he expected that "Girardi [would] offer testimony consistent with the testimony at the [first] trial [at which he] ... suggested [that] there was scientific, technical or specialized knowledge to support it." (Internal quotation marks omitted.) According to the plaintiff, it was questionable whether Girardi's testimony would comport with the rule on the admissibility of expert testimony established in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), which was decided after the first trial but before the commencement of the second trial. Additionally, the plaintiff stated in his motion in limine that he expected that the "defendants [would] attempt to offer expert [testimony] to deny [his] claim of defect and in support of their special defenses alleging that some other person or entity other than [the] defendants [is] liable for the injuries caused to [the] plaintiff." The trial court subsequently denied the plaintiff's motion in limine.

At the second trial, the defendants presented Girardi as an expert. When the defendants sought to question Girardi about the safety standards for forklifts, the plaintiff objected, claiming that the testimony was outside the scope' of the defendants' disclosure. The trial court allowed Girardi to testify as to the subject matter specified in the second disclosure, but refused to allow him to testify regarding the forklift's defective design, the subject matter on which Girardi was expected to testify according to the first disclosure. The trial court ruled that the first disclosure was superseded by the second disclosure.⁹ Before reaching the defendants' claim, we briefly address the applicable standard of review. "The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.... Torres v. Waterbury, 249 Conn. 110, 118-19, 733 A.2d 817 (1999)." (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000). None of the parties to this appeal has challenged the factual findings of the trial court. Our task, therefore, is to decide whether, on the basis of those factual findings, the trial court's conclusions of law are legally and logically correct. E.g., Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999).

Our resolution of the defendants' claim depends on whether a subsequent disclosure of an expert witness that contains no specification that it is intended to supplement a previous disclosure, serves to supplement or to supersede any previous disclosures. The disclosure of experts is governed by Practice Book §§ 13-4¹⁰ and 13-15.¹¹ Under Practice Book §§ 13-4 and 13-15, parties have a continuing duty to disclose information and, thus, they are required to supplement their disclosures with the names of any additional experts who are expected to testify and to designate any additional subject matter on which the experts are expected to testify. Pursuant to Practice Book § 13-4 (4), a court has the authority to preclude the testimony of an expert if, upon motion, the court determines that the late disclosure "will cause undue prejudice to the moving party ... or ... undue interference with the orderly progress of trial of the case ... or [when the later disclosure] involves bad faith delay ......