Davis, et al. v. Property Owners Association at Moodus Lake Shores, Inc., et al.
The preclusion of an opposing party’s expert witness can result in a great tactical advantage in your case, if not lead to the dismissal of the entire action. Often enough, attorneys will seek to preclude an expert witness on the grounds that the disclosure is untimely. Davis, et al v. Property Owners Association at Moodus Lake Shores, Inc., et al., 183 Conn.App. 690 (2018) makes it quite clear that an untimely disclosure is extremely unlikely to result in expert preclusion except in truly prejudicial circumstances.
In Davis, the defendants disclosed two expert witnesses beyond the disclosure deadline as set forth in the scheduling order. The plaintiffs subsequently filed motions in limine to exclude the testimony of these expert witnesses at trial. The plaintiffs argued that the expert disclosures were untimely and allowing the defendants’ experts to testify would be prejudicial “because there would not be sufficient time to prepare for their testimony”. The Court “summarily” denied the motions.
On appeal, the Connecticut Appellate Court affirmed the decision of the trial court. The Connecticut Appellate Court stated that the plaintiffs had “failed to demonstrate that the lengthy delay between the time of the disclosure and the time when trial resumed did not afford them an ample opportunity to rebut the testimony.” The plaintiffs in Davis had filed one expert disclosure ten months before trial was set to resume, and the other nine months before this date. As such, the Court determined that the plaintiffs had sufficient time to remedy any “purported harm caused by the timing of” the disclosures. In addition, the Court reasoned that the plaintiffs could have sought a continuance of trial which “is ordinarily the proper method for dealing with a late disclosure.”
Davis makes clear that winning a motion to preclude expert testimony on the grounds of untimeliness is no small feat.There is now ample Connecticut appellate authority which militates in favor of denying such a motion unless there is clear prejudice to the nonmoving party caused by the timing of the disclosure. As such, attorneys seeking to preclude an expert witness based on untimeliness should be familiar with Davis.