Robert Peck et al. v. Jerome Heller et al. (2011)

RULING ON MOTION TO PRECLUDE EXPERT TESTIMONY (# 135.5)

Defendant Richard Heller moves to plaintiffs' expert, Allan Jay Kovitz, from testifying as an expert witness at trial regarding a damages theory that was disclosed on March 15, 2011, six weeks after the deadline for disclosing plaintiffs' experts.   The motion is denied.

This case is one of the oldest on the court's docket.   The parties were given a scheduling order that required the disclosure of plaintiffs' experts no later than February 1, 2011.   Depositions of plaintiffs' experts are to be completed no later than May 15, 2011, depositions of defendants' experts are to be completed no later than May 21, 2011, and trial is to begin on June 15, 2011.

The plaintiffs did disclose Kovitz' name, and a summary of his proposed testimony, by February 1, 2011.   The defendants' motion is based on the fact that the plaintiffs, without obtaining permission from the court, filed a “supplemental” disclosure on March 15, 2011, setting forth an additional theory on which Kovitz is expected to testify.   The defendants argue that this late disclosure prejudices them in that they will have to carry out additional work, at this late date, to investigate Kovitz' theory and possibly obtain their own rebuttal expert witness.

The plaintiffs' disclosure is untimely, to an extent, in that a new expert's theory, albeit not a new expert, was advanced after the court-ordered expert disclosure deadline.   On the other hand, the defendants have had a full opportunity to investigate Kovitz' background, and they were on notice that the plaintiffs were advancing the theory on which Kovitz is now expected to testify.   See plaintiffs' February 14, 2011, responses to defendants' discovery requests, Exhibit 1, p.21, response to interrogatory number 19.

The court is mindful of the preference to bring about a trial on the merits of a dispute whenever possible, Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006), if that can be accomplished without prejudicing either party.

In order to avoid any prejudice to the defendants, they will be given an opportunity to obtain the services of a rebuttal expert, should they wish to do so, and they will also be allowed to conduct a supplemental deposition of Kovitz, should they wish to do so, no later than June 1, 2011.   If the defendants retain a rebuttal expert whom they wish to present at trial, the expert disclosure for that individual will be effected no later than June 6, 2011, and the plaintiffs will be allowed to depose that individual no later than June 10, 2011.

For the foregoing reasons, the motion to preclude the plaintiffs' expert is denied.

So ordered.

BY THE COURT,

John A. Danaher III

Danaher, John A., J.