Epright v. Liberty Mut. Ins. Co.

212 Conn.App. 637

276 A.3d 1022

Jacqueline EPRIGHT

v.LIBERTY MUTUAL INSURANCE COMPANY

AC 43969

Appellate Court of Connecticut.

Argued February 8, 2022

Officially released May 31, 2022

Mario Cerame, with whom, on the brief, was Timothy Brignole, Hartford, for the appellant (plaintiff in error Brignole, Bush & Lewis, LLC).

Thomas P. Mullaney III, for the appellee (defendant in error Liberty Mutual Insurance Company).

Alvord, Moll and Sheldon, Js.

SHELDON, J.

This case comes before the court on a writ of error brought by the plaintiff in error¹ Brignole, Bush & Lewis, LLC, the law firm representing the plaintiff, Jacqueline Epright, in the underlying action to recover underinsured motorist benefits from the defendant in error, Liberty Mutual Insurance Company, in connection with a motor vehicle accident. The plaintiff in error seeks review of the trial court's order granting a motion for sanctions, which the defendant in error filed against it in the underlying action as a motion for expenses, pursuant to which the plaintiff in error has been ordered to pay the defendant in error all costs related to the defendant in error's retention of James W. Depuy, an expert first disclosed by the defendant in error as a potential trial witness in the underlying case to dispute the causal connection between the motor vehicle accident and one of Epright's principal claims of injury. The court based its challenged sanctions order upon a finding that the plaintiff in error had had impermissible ex parte communications with Depuy after the defendant in error disclosed him as a testifying expert, in what the court found to have been a clear violation of the rules of expert discovery set forth in Practice Book § 13-4.

In its writ of error, the plaintiff in error claims that the sanctions order issued by the trial court was improper because, among other things, (1) the plaintiff in error complied with the rules of practice governing the disclosure of expert witnesses, (2) no rule of practice prohibited the ex parte communications here at issue, and (3) the prerequisites necessary to justify imposition of a discovery sanction were not satisfied in this instance. The plaintiff in error also argues that, to the extent the rules of practice are interpreted to prohibit the ex parte communications in question, the rules are unconstitutionally vague because they fail to provide adequate notice that such communications are prohibited.² Because we conclude that our rules of practice do not clearly prohibit ex parte communications between an attorney for a party and a testifying expert witness previously disclosed by an opposing party, the order of sanctions in this case cannot stand.³ Accordingly, we reverse the judgment of the trial court.

We begin by setting forth the relevant facts, as found by the trial court, in addition to the procedural history of the present dispute. The plaintiff in the underlying action, Epright, filed suit to recover underinsured motorist benefits under her insurance policy with the defendant in error in connection with a rear-end motor vehicle collision that occurred on December 14, 2012. Epright allegedly sustained various injuries as a result of this accident, including an injury to her left shoulder, which she claims to have resulted in multiple surgeries. On August 30, 2017, the defendant in error filed a disclosure pursuant to Practice Book § 13-4, which identified Depuy as an expert witness who would opine, on the basis of his review of Epright's medical records, that the treatment Epright received for her left shoulder was not causally related to the motor vehicle accident.

On January 7, 2019, Attorney Kevin F. Brignole, an attorney with the plaintiff in error who represents Epright in the underlying action, deposed Depuy at the defendant in error's expense. Depuy was emphatic that he had reviewed all of Epright's medical records and that there was no indication in them that Epright had complained of any shoulder pain until well after the accident. He thus opined that Epright's shoulder injury was unrelated to the accident. Depuy was then asked by Kevin Brignole whether it would change his opinion on the issue of causation if he learned that Epright had been complaining about shoulder pain since the date of the accident. Depuy testified that if that were the case, then his opinion might, indeed, be different. Depuy was then asked if he had been provided with copies of Epright's deposition transcripts prior to rendering his opinion, and he replied that he had not. Epright had testified at her deposition that she had been complaining about shoulder pain ever since the date of the accident.

On January 22, 2019, without informing or obtaining consent from counsel for the defendant in error, Attorney Timothy Brignole, another attorney with the plaintiff in error, instructed his paralegal, Sandra Bryant, to contact Depuy's office to set up an appointment for Depuy to perform a medical examination of Epright for a fee. Timothy Brignole was within earshot of Bryant when she spoke with Depuy's secretary, who scheduled the medical examination for February 12, 2019. "Immediately following this discussion, [Kevin] Brignole filed a lengthy and detailed disclosure," indicating that Epright intended to call Depuy as an expert witness at trial (January 22 disclosure). Timothy Brignole then sent this disclosure to the general e-filing address of the law firm representing the defendant in error. The January 22 disclosure stated, among other things, that, upon information and belief, Depuy would testify that, contrary to his earlier opinion, he believed that Epright's shoulder injury was a direct result of the motor vehicle accident. In a letter to Depuy dated January 22, 2019, Timothy Brignole memorialized the scheduling of the examination and reiterated his intention to pay Depuy a fee for the examination.⁴ Along with the letter, he enclosed Epright's deposition transcripts.⁵ Prior to the January 22 disclosure, the plaintiff in error made no attempt to reach an agreement with or to inform counsel for the defendant in error about having Depuy consider Epright's deposition transcripts or having him examine her as possible bases for reconsidering his previously disclosed expert opinion concerning the causation of Epright's shoulder injury.

Depuy conducted the medical examination of Epright on March 5, 2019. The plaintiff in error never informed the defendant in error that the examination, which was originally scheduled for February 12, 2019, had been rescheduled for March 5, 2019. On March 6, 2019, Kevin Brignole sent the defendant in error a medical examination report prepared by Depuy. The report stated that, on the basis of his discussion with and examination of Epright, Depuy had come to believe that the shoulder injury of which she was complaining of in the underlying action was causally related to her December 14, 2012 accident.

On March 8, 2019, the defendant in error filed a motion for order to show cause, requesting that the court issue a summons and order to Depuy and his employer, Ortho-Connecticut/Danbury Orthopedics, requiring them to appear at a hearing before the court to demonstrate why its attached prayer for injunction and disgorgement should not be granted. In its prayer for injunction and disgorgement, the defendant in error sought to enjoin Depuy from giving any testimony in the underlying action, to enjoin and prohibit any use of his March 5, 2019 medical examination report at trial, and to require Depuy to disgorge all sums it had paid to him for his expert services in the underlying action.

On March 14, 2019, construing the motion for order to show cause as "a motion to preclude/motion to disqualify" Depuy, the court ordered that a hearing on the motion be held on April 4, 2019, and permitted counsel for the defendant in error to subpoena Depuy to appear at the hearing and produce his file in this matter. On March 21, 2019, the plaintiff in error, on behalf of Epright, filed an objection to the defendant in error's request that Depuy be precluded from testifying in the action, arguing, inter alia, that neither Connecticut case law nor Connecticut's rules of practice limit or prohibit a plaintiff from disclosing, as the plaintiff's own expert, an individual who previously was named by a defendant as a testifying expert. Furthermore, it argued that there is no authority in Connecticut requiring counsel for the plaintiff to seek any waiver, stipulation or permission from counsel for the defendant before having direct contact with a testifying expert whom the defendant has disclosed, especially when the plaintiff has disclosed that she too may call the expert to testify as her own expert witness at trial. On April 18, 2019, both the plaintiff in error, on behalf of Epright, and the defendant in error, on its own behalf, filed posthearing briefs.

In a memorandum of decision dated June 18, 2019, the trial court, Frechette, J. , granted the defendant in error's motion to disqualify Depuy. As its basis for so doing, the court stated that the conduct of the plaintiff in error constituted "a clear violation of Practice Book § 13-4." The primary basis for the court's conclusion to that effect was that the plaintiff in error had contacted Depuy "ex parte, imparted information to him, set up an appointment for him to conduct an examination of [Epright], and offered him remuneration ...." The court further found that the January 22 disclosure was noncompliant with § 13-4 (e), a provision that explicitly authorizes parties in civil cases, inter alia, to adopt "all or a specified part of the expert disclosure already on file," because "the disclosure already filed by the defendant [in error with respect to Depuy] contained an opinion that was unambiguously unfavorable to [Epright], and the ... January 22 disclosure references a future examination and an opinion favorable to [Epright]. Thus, it is clear that the ...