Jacqueline Debaise v. David Debaise (2014)

MEMORANDUM OF DECISION Re Motion to Disqualify Expert (No. 132.00)

The defendant moves to disqualify the expert witness disclosed by the plaintiff in this matter.   The disclosed witness, Sean McNamee, is a CPA, the brother of the plaintiff and the ex-brother-in-law of the defendant.   The postjudgment issues before the court are the parties' respective motions for the court to modify alimony and child support.   The subject matter upon which the expert has been disclosed to testify is the defendant's earnings and the fair market value of the defendant's equity interest in his businesses.   The defendant seeks to disqualify McNamee on the grounds of bias.   At the hearing on the motion to disqualify, the defendant raised the additional grounds of McNamee's lack of sufficient qualifications as a CPA and the claim that McNamee and the defendant are direct business competitors.   The court conducted an evidentiary hearing on March 20, 2014.   Upon careful consideration of the evidence presented, the arguments of counsel, and the applicable law, the court finds as follows.

First, with respect to the issue of McNamee's qualifications, the court finds that the witness testified credibly as to his training and experience as a CPA as well as his past involvement as an expert witness in various court proceedings.   It has long been recognized in Connecticut that “if any reasonable qualifications can be established, the objection [to the qualifications of the expert] goes to the weight rather than to the admissibility of the evidence.”  Wray v. Fairfield Amusement Co., 126 Conn. 221, 10 A.2d 600 (1940).   The defendant's claim that McNamee should be disqualified on the ground that he lacks sufficient qualifications as a CPA is rejected.

Second, with respect to the issue that disclosure of documents by the defendant for review by McNamee may create unspecified problems for the defendant because McNamee and he are business competitors, the court finds that the defendant failed to offer any evidence to support his claim that he and McNamee are direct competitors in the same field or that the defendant's business would be harmed if the financial disclosures he is required to make in connection with this action are examined by McNamee (in his capacity as an expert for the plaintiff).   Moreover, the defendant failed to provide the court with any authority to support his position that an expert may be disqualified because he is a business competitor of a party.   The court is not aware of any basis upon which to disqualify McNamee as an expert in this action on the unproven claims of business competition or harm to the defendant.   The defendant's concerns regarding direct business competition or confidentiality of client information can be addressed through the redaction of documents and/or the entry of a confidentiality and non-disclosure agreement between the parties and McNamee.

The last, and most compelling, of the defendant's claims is that the disclosed expert should be disqualified due to bias.   It is abundantly clear from McNamee's appearance in court, the nature and tone of his testimony, and the substance of the emails introduced into evidence, that he is overtly and intensely biased in favor of the plaintiff.   However, personal bias alone will not permit the court to disqualify a witness.   See Gen.Stat. § 52–145(a) (“A person shall not be disqualified as a witness in any action because of ․ his interest in the outcome of the action as a party or otherwise ․”).

The defendant cites to Weinstein v. Weinstein, 18 Conn.App. 622, 561 A.2d 443 (1989), to support his claim that the court may disqualify a witness on the basis of bias.   However, as observed by the court in Maturo v. Commission of Department of Environmental Protection, Superior Court, judicial district of New Haven, Docket No. CV 91–0313753S (March 19, 2008, Corradino, J.), 45 Conn. L. Rptr. 256 (2008 WL 1734580), the Weinstein court held that in ruling that the plaintiff's father could not testify regarding a cash analysis he prepared, the trial court could reasonably conclude that the witness was too likely to be biased and was not sufficiently qualified in accounting to provide useful assistance.  “The point is that even Weinstein which goes far does not go so far as to say bias alone, permits a trier of fact, without more, to reject that testimony and not consider it.   Or to put it another way bias ․ can be considered but cannot be used to bar consideration of testimony unless it raises articulated questions or concerns about expert qualifications or findings made by the expert as to facts which are essential to support the expert's opinion.”  Id.,*20.

McNamee has not made any findings in this case because the defendant's motion to disqualify was filed before he had an opportunity to review any of the defendant's financial documents or formulate an opinion.   At this stage of the proceedings, and based upon the evidence presently before the court, the court finds that there is not a sufficient basis upon which it could disqualify McNamee from testifying as an expert witness in this matter.   The court finds further, however, that the issue of McNamee's bias may be raised in later proceedings upon a showing that his bias raises articulated questions or concerns about his expert qualifications or any findings he may make as to facts which are essential to support his expert opinion.   Moreover, McNamee's clear interest in the outcome of these postjudgment proceedings may be further shown for the purpose of affecting his credibility.   See Gen.Stat. § 52–145(b).

For the foregoing reasons, the defendant's motion to disqualify is DENIED without prejudice to being renewed later in these proceedings, if appropriate.

MORGAN, J.

Morgan, Lisa K., J.