CondominiumsIn a recent case, the Connecticut Supreme Court held, inter alia, that trial court did not abuse its discretion in allowing testimony by an expert who was disclosed by the plaintiff several months after the discovery scheduling deadline and one week before jury selection began.

A condo resident, who was also president of the condominium association’s board of directions, brought claims including negligence per se against the Condominium Association (condo) and the Management Company (management company, hired by the association) for injuries she sustained when she missed a concrete step while coming down from a roof deck of condo building. The plaintiff brought an action, alleging, inter alia, that the defendants negligently maintained the original step in violation of the building code.

The plaintiff’s expert witness, a consulting engineer, was asked to describe the building code and to give his opinion as to whether the step on which the plaintiff was injured deviated from the building code. He said it did.

The jury returned a verdict for plaintiff and awarded her damages.  The condo association and management company appealed the verdict.

The Appellate Court reversed the judgment of the trial court and remanded the case for a new trial. The plaintiff appealed that decision.  The plaintiff claimed that improperly admitted expert testimony was “merely cumulative of other validly admitted testimony” because the expert witness testified at length about the building code violations relating to the original step, which concerned the central issue of building code compliance that was the basis for the jury’s finding of negligence per se.

Justice Peter T. Zarella of the Supreme Court explained that in determining whether evidence is merely cumulative, the court would consider the nature of the evidence and whether any other evidence was admitted that was probative of the same issue as the evidence in controversy.  In a prior holding, the Connecticut Supreme Court found that the admission of an expert’s report—even if improper—was nevertheless harmless because it was merely cumulative of that expert’s testimony at trial.  On the other hand, Justice Zarella pointed to a 2009 decision in which an expert witness was improperly precluded from testifying.  In that case the proposed testimony would have addressed an issue for which no other testimony was proffered, making exclusion harmful.  In the plaintiff’s appeal, the justice said that on the question of compliance with the building code, the improperly admitted evidence was cumulative of evidence that properly was introduced during the examination of other witnesses by the plaintiff’s counsel.  This evidence had similarly probative value as to whether the building code was violated, which formed the basis for the jury’s finding of a breach of duty under the negligence per se counts. There was significant testimony from expert witnesses regarding the issue of the building code violation, and that testimony focused on the issue in detail as to the building code during property manager’s testimony. The expert witness’ uncontroverted testimony regarding the building code was that the step that existed at the time of the accident violated the building code in several ways.

The defendants claimed that the trial court improperly denied their motion to preclude the testimony of their expert, who was disclosed as an expert witness four months after the expert discovery deadline and a week before the start of jury selection.  This late disclosure, the defendants argued, coupled with the denial of their request for a continuance, prejudiced the defendants and was harmful:  they claimed they would have trouble locating a rebuttal witness on that short notice. The plaintiff’s disclosure indicated that she “believe[d] that [the defendant’s expert witness was] a fact witness” but filed the expert disclosure “in case the defendant[s] [believed] otherwise….”  As it turned out, during the defendant’s expert testimony, the plaintiff’s attorney moved to qualify him as an expert witness, which the trial court allowed.  In that same motion, the defendants requested a continuance in the alternative to entirely precluding the defendant’s expert testimony. The plaintiff objected and claimed that the defendant’s expert disclosure became necessary as rebuttal only after the defendants filed a motion in limine that called into question the plaintiff’s expert’s capacity to testify about the building code and that his testimony would not add new issues into the case.

The trial court determined that the “there were good reasons for the late filing” and that the defendants should have filed a motion for a continuance prior to jury selection.  In addition, the trial court considered that the defendant’s expert was to be deposed the next day.  As a result, the trial court denied the motion without prejudice and declined to grant a continuance. The defendant’s expert testified at trial after being qualified as an expert witness.  He said that a hypothetical step with dimensions like the one at issue in the plaintiff’s case would violate the building code.  On cross-examination, he admitted that he had not analyzed the scene of the plaintiff’s accident.

The plaintiff said even if the admission of the expert’s testimony was an abuse of discretion, it was not harmful. Justice Zarella agreed with her. Making every reasonable presumption in favor of upholding the trial court’s ruling, the justice was not persuaded that the denial of the motion to preclude the defense expert’s testimony was an abuse of discretion. During the hearing on the motion, the trial court appeared to have considered the factors set forth in the Connecticut Practice Book but did not find that they were applicable under the circumstances.

Judge Zarella wrote that, as far as any undue prejudice, the defendants’ counsel conceded that their expert’s testimony would likely be cumulative of the plaintiff’s expert’s, when weighed against a finding of prejudice in that the plaintiff’s expert had been timely disclosed, and he was deposed on the building code. The defendants argued that the Supreme Court’s decision in Pool v. Bell (1989) applied to this case.  In Pool, the court upheld the trial court’s decision to preclude an expert witness who was disclosed belatedly when “the trial court could reasonably have viewed the late date at which the defendant disclosed [the expert] as the sort of ‘cat and mouse’ game that the rules of discovery and production were designed to discourage.”  However, in the plaintiff’s claim, there was no evidence that the late disclosure was motivated by bad faith, and as a result the trial court did not abuse its discretion in concluding that exclusion was not warranted.

The judgment of the appellate court was reversed and the case was remanded to the court of appeals with direction to affirm the trial court’s judgment.

Case:  No. 18722, — A.3d —,  2013 WL 515490 (Conn. Feb. 19, 2013).

By:  Kurt Mattson, J.D., LLM