GRJH v. John R. Morgan, Inc. et al. (2013)

MEMORANDUM OF DECISION

This motion to preclude (# 119.00) the plaintiff from calling two expert witnesses at trial was argued at the short calendar on June 24, 2013.   It presents an interesting question on which there is very little appellate authority.   For the reasons given below, the motion must be denied.

The plaintiff alleges that in October 2009 it contracted with the defendant, John R. Morgan, Inc. to provide labor and equipment to upgrade the gas lines and sumps connected to underground fuel tanks at commercial property it was purchasing in Harwinton, Connecticut.   The defendant, John R. Morgan, Inc. was acting by its owner and president, John R. Morgan.

The plaintiff further alleges that the defendants were negligent in their work, breached their contract, made misrepresentations, and committed CUTPA violations.   The allegations made in the seven counts of the complaint are nearly identical to the allegations made in prior suit in this court between the same parties, Docket No. CV10–6001886 (“first action”).   That suit was withdrawn by the plaintiff on February 6, 2012, one month before the case was scheduled for trial on March 6, 2012.

In the present case, the pleadings are closed and the case is scheduled for trial on October 22, 2013.   The plaintiff has disclosed four expert witnesses:  William K. Beckman is a professional engineer, Andre Bissonnette a contractor in the same line of work as the defendants, and Jean Nenbeck and Scott Hulseapple, hydrologists who work for the same firm.   Only Jean Nenbeck had been disclosed as an expert in the first action.   The defendants move that Beckman and Bissonnette be precluded from testifying on the ground that the plaintiff has manipulated the rules of practice to disclose experts that it would not have been able to disclose in the first action because of the proximity of the trial.

The defendants rely on the following procedural details.   The trial date in the first case, March 6, 2012, was set at a scheduling conference on December 17, 2010.   During the long discovery period the parties disclosed experts and took depositions.   However, the defendants claim that they were never able to take the deposition of the plaintiff's primary witness, James Metz, III, because he had left the jurisdiction and could not be produced at trial.   On January 4, 2012, the plaintiff's attorney, Matthew Hirsch, moved to withdraw his appearance.   Neither party opposed this motion which was granted by the court (Roche, J.) on January 17, 2012.

Although he had not filed an appearance, Attorney James Nugent, was permitted to attend the trial management conference for the plaintiff on January 27, 2012 and to seek a continuance of the trial on the ground that his schedule would not permit him to try the case on March 6, 2012.   He was informed by the court that no continuances of the trial date would be entertained.   He filed his appearance for the plaintiff on February 6, 2012 and withdrew the case on the same day.   The present case was filed in the New London Judicial District on September 11, 2012.   Upon motion of the defendant, the case was transferred to the Litchfield Judicial District.   The defendant characterizes the history of the two cases as an attempt to “manipulate the dockets of two courts in an effort to stack the deck in its own favor and avoid a trial when it was inconvenient for the plaintiff” and “to try to fashion a viable case from the failure to produce a key witness.”   Apparently, James Metz, III is now available and has been deposed by the defendant.

The plaintiff argues that the defendant filed a motion to dismiss this case (# 109.00) on the same grounds currently being raised:  that this case is a manipulation of the rules.   The plaintiff presented a detailed affidavit from an officer of the plaintiff that the reason it withdrew the first case was that it could not find replacement counsel to try the case as scheduled on March 6, 2012.   The motion to dismiss was denied by the court (Danaher, J.) on February 26, 2013 without a written decision.

The plaintiff argues that it is “wild conjecture” that the absence of James Metz, III had anything to do with the decision to withdraw the first case.   The plaintiff characterizes this motion to preclude as an attempt “to cobble together disparate segments of one older case;  the current case;  a discovery rule related to expert disclosure and irrelevant case law in a strange amalgam thrown before the court in an indecipherable mess.”

The over-heated rhetoric of both attorneys aside, the court must base its decision on the facts and the law.   In support of this motion to preclude, the defendants primarily rely on Judge Berger's Superior Court decision in Byrd v. Leszcynski, Superior Court, judicial district of Hartford, Docket No. CV–96–0564252 (August 25, 2000) [28 Conn. L. Rptr. 88].   In that case, an original suit had been withdrawn just after the court had granted the defendant's motion to preclude the plaintiff's late disclosure of three expert witnesses.   The plaintiff filed the second suit within about one month.   The defendant moved to restore the first suit to the docket and to dismiss the second suit.   Judge Berger surveyed the various prior decisions dealing with attempts to restore cases to the docket after they had been withdrawn to avoid an adverse ruling of the court.   He concludes that, although C.G.S. § 52–80 gives the plaintiff an absolute right to withdraw a case prior to the commencement of a hearing on the merits:  “The plaintiff's tactical use of the withdrawal constituted an abuse of the litigant's privilege, especially when it was used solely to avoid an order of the court, and it clearly has a prejudicial effect on the opposing side.”  (Citations omitted.)   Based on that reasoning, Judge Berger granted the defendant's motion to restore the original withdrawn case to the docket and to dismiss the second suit.   This had the effect of putting the case back to the posture it had just before the withdrawal.

In a second case cited by the defendant, Zamkov v. Sawyer, Superior Court, judicial district of New Haven at Meriden, Docket No. CV–00–0273468 (December 6, 2000) [28 Conn. L. Rptr. 484], Judge Booth agreed with Judge Berger's decision in Byrd, and dismissed a second suit filed after a tactical withdrawal of the first suit following adverse rulings.

The plaintiff does not attempt to argue that Judge Berger or Judge Booth were incorrect in their application of the law.   But, the plaintiff points out that this case is in a different posture from the cases in Byrd or Zamkov.   In those cases, the defendant was attempting to dismiss the second suit, and, in Byrd, to restore the first suit.   Here, the defendant has already failed in an attempt to dismiss this case and raised the same arguments including reliance on the Byrd case.   Judge Danaher did not write a decision when he denied the motion to dismiss but had the affidavit from the plaintiff's officer that the only reason for the withdrawal was that it was unable to obtain an attorney to try the case on the scheduled date.   It is reasonable to conclude that Judge Danaher accepted the plaintiff's explanation for the withdrawal and did not agree with the defendant's argument that the plaintiff was engaged in a manipulation of the rules.   Although the withdrawal was made in an attempt to avoid an adverse ruling of the court, i.e. not to continue the trial, it was not an unreasonable or manipulative action.   Clearly, the plaintiff corporation could not try the case without an attorney.   It is significant that, unlike the defendant in Byrd, the defendant in the present case did not move to restore the first case to the docket.   This court feels constrained by the denial of the motion to dismiss not to permit the defendant to raise the same issues in another form.

The expert disclosures in this case have all been timely.   Trial is not scheduled until October 22, 2013.   The defendant has plenty of time to depose the plaintiff's experts.   There is no obvious unfair prejudice to the defendant if this motion to preclude is denied.

The motion to preclude is denied.

BY THE COURT,

John W. Pickard

Pickard, John W., J.