Epright v. Liberty Mutual Ins. Co. ( 2022 )

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JACQUELINE EPRIGHT v. LIBERTY
MUTUAL INSURANCE COMPANY
(AC 43969)
Alvord, Moll and Sheldon, Js.
Syllabus
The plaintiff in error, B Co., a law firm that represented the plaintiff, E, in
the underlying action to recover underinsured motorist benefits from
the defendant in error, L Co., filed a writ of error claiming that the trial
court improperly ordered sanctions, requiring B Co. to pay all costs
related to L Co.’s retention of D, an expert disclosed by L Co. as a
potential trial witness in the underlying case. L Co.’s disclosure indicated
that, on the basis of his review of E’s medical records, D would opine
that E’s shoulder injury was not related to the underlying motor vehicle
accident. During his deposition, however, D indicated that his opinion
might change if he learned that E had been complaining about her
shoulder injury since the date of the accident. Thereafter, without
informing or obtaining the consent of L Co., B Co. sent E’s deposition
transcripts, in which she indicated that she had been complaining about
her shoulder pain since the date of the accident, to D and set up an
appointment for D to perform a medical examination of E. Prior to the
examination, B Co. filed a disclosure indicating that it intended to call
D as an expert witness at trial to testify that, contrary to his earlier
opinion, D believed that E’s shoulder injury was a direct result of the
motor vehicle accident. Following the medical examination, D prepared
a report to that effect. Thereafter, the trial court granted L Co.’s motion
for expenses, requiring B Co. to reimburse L Co. for all expenses it had
paid to D for his expert services. Held that the trial court’s order of
sanctions must be reversed because our rules of practice do not clearly
prohibit ex parte communications between an attorney and an expert
who previously had been disclosed by the opposing party as a potential
trial witness: pursuant to our Supreme Court’s decision in Millbrook
Owners Assn., Inc. v. Hamilton Standard (257 Conn. 1), for a trial
court’s order of sanctions for a violation of a discovery order or rule
to withstand scrutiny, the order or rule to be complied with must be
reasonably clear, and the applicable rule of practice (§ 13-4) in the
present case does not include language that explicitly prohibits ex parte
communications with experts who have been disclosed by an opposing
party; moreover, the trial court’s holding that B Co.’s ex parte communi-
cations with D were implicitly forbidden because they were not explicitly
permitted by Practice Book § 13-4 was predicated on outdated authori-
ties that analyzed a pre-1993 version of rule 26 (b) (4) of the Federal
Rules of Civil Procedure, which the trial court claimed mirrored Practice
Book § 13-4 and provided the exclusive means for conducting discovery
of expert witnesses, however, the exclusivity language of the pre-1993
version of rule 26 (b) (4) is not included in the current version of the
rule or in the current version of Practice Book § 13-4; furthermore,
Practice Book § 13-4 (e), which establishes a procedure by which a
party can adopt and make use of an expert already disclosed by another
party, implicitly suggests that some sort of communication may be
required between opposing counsel and a disclosed expert to satisfy
the disclosure requirements of that subsection; accordingly, the trial
court’s justification for the order of sanctions, which was based on its
finding that B Co.’s conduct with respect to D was wrongful, was clearly
erroneous.
Argued February 8—officially released May 31, 2022
Procedural History
Writ of error from an order of the Superior Court in
the judicial district of Middlesex, Frechette, J., granting
a motion for sanctions filed by the defendant in error,
brought to the Supreme Court, which transferred the
matter to this court. Reversed; judgment directed.
Mario Cerame, with whom, on the brief, was Timo-
thy Brignole, for the appellant (plaintiff in error Brig-
nole, Bush & Lewis, LLC).
Thomas P. Mullaney III, for the appellee (defendant
in error Liberty Mutual Insurance Company).
Opinion
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 plain-
tiff, Jacqueline Epright, in the underlying action to
recover underinsured motorist benefits from the defen-
dant 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 imper-
missible 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 disclo-
sure of expert witnesses, (2) no rule of practice prohib-
ited 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 unconstitu-
tionally 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 motor-
ist benefits under her insurance policy with the defen-
dant in error in connection with a rear-end motor vehi-
cle 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 disclo-
sure 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 defen-
dant 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 com-
plained of any shoulder pain until well after the acci-
dent. 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 complain-
ing about shoulder pain ever since the date of the acci-
dent.
On January 22, 2019, without informing or obtaining
consent from counsel for the defendant in error, Attor-
ney Timothy Brignole, another attorney with the plain-
tiff 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. ‘‘Imme-
diately 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 examina-
tion 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 dis-
qualify’’ 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 dis-
closed 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 refer-
ences a future examination and an opinion favorable
to [Epright]. Thus, it is clear that the January 22 disclo-
sure is not an adoption of the [defendant in error’s]
disclosure of Dr. Depuy’s expert opinion under . . .
§ 13-4 (e).’’6 (Emphasis omitted.)
The court then stated that our rules of practice ‘‘do
not authorize, and thus implicitly forbid, counsel from
making ex parte contact with the opposing party’s dis-
closed expert.’’ The court indicated that the plaintiff in
error’s contact with Depuy was ‘‘especially egregious’’
because ‘‘he was a currently disclosed expert for the
opposing party, and the contact resulted in him ‘switch-
ing sides’ of the litigation close in time to the commence-
ment of trial.’’ The court stated: ‘‘To reiterate the obvi-
ous: parties and their attorneys are allowed to, and
routinely do, hire and disclose expert witnesses in order
to present their side of the case. As part of this, counsel
need to be able to have candid discussions with their
experts, and be allowed to cogently present their side
of the case through the disclosed expert. Our Practice
Book rules provide the means for obtaining information
about the other side’s expert, via interrogatories and
depositions. These rules do not permit ex parte contact
with the other side’s experts. In the case at bar, [Epright]
had, indeed, already disclosed two of her own experts.
Severing the contact between the defendant [in error]
and its only expert is prejudicial to the defendant [in
error] because it was relying upon Dr. Depuy’s testi-
mony in the impending trial. If this court were to con-
done the [plaintiff in error’s] behavior, it would encour-
age circumvention of Connecticut’s mandatory discovery
rules. . . . In addition, the defendant [in error] would
be prevented from presenting the evidence at trial in a
way that fits its story of the case, which it has a right
to do.’’ (Citation omitted; emphasis omitted; footnote
omitted.) In sum, the court concluded that ‘‘there were
plenty of alternative, appropriate courses of action
available to [the plaintiff in error]’’; however, none was
taken.7 On that basis, it granted the defendant in error’s
motion to disqualify Depuy.8 In addition, it indicated in
its ruling that the defendant in error could file a motion
to recover any fees or costs related to this motion to
preclude or any other expenses it had incurred as a
result of the actions of the plaintiff in error.9
On July 24, 2019, the defendant in error filed a motion
for expenses requesting that the court order the plaintiff
in error to reimburse it for all fees, costs, and expenses
related to Depuy. Attached to the motion was an affida-
vit that set forth the value of the legal services that the
defendant in error’s counsel had rendered in connection
with this dispute as to Depuy ($16,732.50), in addition to
the amount the defendant in error had paid for Depuy’s
expert services up until that point ($12,895).
On January 2, 2020, the court issued its ruling on the
defendant in error’s motion for expenses, drawing upon
much of its discussion in its earlier memorandum of
decision that ordered Depuy’s preclusion.10 The court
stated that, although there was ‘‘no Connecticut author-
ity directly dealing with this issue,’’ this was likely so
‘‘because so few attorneys would engage in direct ex
parte contact with an opponent’s expert.’’ The court
further stated: ‘‘[The plaintiff in error] still maintains,
without citing any legal authority, that he is allowed to
engage in ex parte contact with his opponent’s expert.
This is a disturbing position for counsel to take, and in
the case at bar, has resulted in the wrongful disruption
of the court’s docket and significant costs to the defen-
dant [in error]. [The plaintiff in error] seems to suggest
that [it] is somehow defending the rights of the plain-
tiff’s bar in taking this position. This is also a curious
position: do plaintiffs not hire experts to help present
their cases? Do counsel for plaintiffs want counsel for
defense to engage in ex parte contact with experts
retained (and paid) by them? To state the obvious, nei-
ther party—plaintiff or defendant—[is] permitted to
directly engage in ex parte discussions with their oppo-
nent’s expert. We have, like every other jurisdiction,
clear and explicit rules regarding the obtaining of infor-
mation from the other side’s expert: they are known as
rules of discovery. Every lawyer knows (or should
know) what the rules are regarding the obtaining of
information from an opponent’s expert.’’
The court then concluded that the requirements for
sanctions under our case law were satisfied. Citing to
Millbrook Owners Assn., Inc. v. Hamilton Standard,
257 Conn. 1, 17–18, 776 A.2d 1115 (2001),11 the court
concluded that Practice Book ‘‘§ 13-4 is clear,’’ it ‘‘was
violated,’’ and the ‘‘preclusion of expert testimony and
related attorney’s fees are proportional to the noncom-
pliance at issue.’’ The court found that the plaintiff in
error’s improper ex parte communication had caused
the defendant in error ‘‘to lose the [defendant in error’s]
disclosed expert.’’ The court further stated: ‘‘This action
by [the plaintiff in error] (1) caused a delay in the
imminently scheduled trial (which irretrievably dis-
rupted the court’s docket); (2) caused the defendant
[in error] to incur costs in the fees already paid to its
expert; and (3) caused the defendant [in error] to now
have to hire a new expert so that the defendant [in
error] could properly defend this case.’’ The court then
ordered the plaintiff in error to pay the defendant in
error the sum of $12,895, which represented and was
intended to compensate the defendant in error for all
expenses it had paid to Depuy for his expert services.
The court, however, did not order the plaintiff in error
to pay the defendant in error’s attorney’s fees associated
with this dispute. This writ of error followed. Additional
facts will be set forth as necessary.
We begin by setting forth the legal principles regard-
ing a trial court’s power to sanction a party or attorney.
A trial court’s authority to impose sanctions comes from
various sources. One such source is ‘‘our rules of prac-
tice, adopted by the judges of the Superior Court in the
exercise of their inherent rule-making authority . . . .’’
Wyszomierski v. Siracusa, 290 Conn. 225, 234, 963 A.2d
943 (2009). With respect to disclosures and discovery
of expert witnesses in civil matters, Practice Book § 13-
4 (h) provides in relevant part that ‘‘[a] judicial authority
may, after a hearing, impose sanctions on a party for
failure to comply with the requirements of this sec-
tion. . . .’’12
In addition to the foregoing rule, our Supreme Court
has ‘‘long recognized that, apart from a specific rule of
practice authorizing a sanction, ‘the trial court has the
inherent power to provide for the imposition of reason-
able sanctions, to compel the observance of its rules.’ ’’
Millbrook Owners Assn., Inc. v. Hamilton Standard,
supra, 257 Conn. 9. Subject to certain limitations, our
trial courts may impose sanctions against attorneys and
their clients ‘‘for a course of claimed dilatory, bad faith
and harassing litigation conduct, even in the absence
of a specific rule or order of the court that is claimed
to have been violated.’’ (Internal quotation marks omit-
ted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn.
375, 393, 685 A.2d 1108 (1996), overruled in part on other
grounds by State v. Salmon, 250 Conn. 147, 154–55, 735
A.2d 333 (1999). ‘‘[B]efore imposing any such sanctions,
the court must afford the sanctioned party or attorney
a proper hearing on the . . . motion for sanctions.
. . . There must be fair notice and an opportunity for
a hearing on the record.’’ (Citation omitted; internal
quotation marks omitted.) Maris v. McGrath, 269 Conn.
834, 844, 850 A.2d 133 (2004).
In order for a trial court’s order of sanctions for
a violation of a discovery order or rule to withstand
scrutiny, three requirements must be met. ‘‘First, the
order to be complied with must be reasonably clear.
In this connection, however, we also state that even an
order that does not meet this standard may form the
basis of a sanction if the record establishes that, not-
withstanding the lack of such clarity, the party sanc-
tioned in fact understood the trial court’s intended
meaning. This requirement poses a legal question that
we will review de novo. Second, the record must estab-
lish that the order was in fact violated. This requirement
poses a question of fact that we will review using a
clearly erroneous standard of review. Third, the sanc-
tion imposed must be proportional to the violation. This
requirement poses a question of the discretion of the
trial court that we will review for abuse of that discre-
tion.’’ (Internal quotation marks omitted.) Menna v. Jai-
man, 80 Conn. App. 131, 135, 832 A.2d 1219 (2003); see
also Millbrook Owners Assn., Inc. v. Hamilton Stan-
dard, supra, 257 Conn. 17–18.
Under these authorities, the question we must first
address in reviewing the appropriateness of the sanc-
tion here at issue is whether Practice Book § 13-4 is
‘‘reasonably clear’’ in alerting attorneys that they may
not have ex parte communications with experts who
have been disclosed by their opponents as potential
witnesses at trial. The trial court did not identify a
particular portion of the rule that was violated; rather,
it concluded that our ‘‘rules require the attorney seeking
information from, or contact with, an opponent’s expert,
to follow the Practice Book rules of discovery, and
obtain the information sought through those rules, not
outside them.’’ It reasoned that our ‘‘rules do not autho-
rize, and thus implicitly forbid, counsel from making
ex parte contact with the opposing party’s disclosed
expert.’’
We must therefore turn our attention to Practice
Book § 13-4. In our review of that rule, we have found no
explicit prohibition regarding ex parte communications
with experts who have been disclosed by an opposing
party as potential witnesses at trial. To that end, we
note that in other provisions of our rules of practice
where the judges of the Superior Court intended to
limit a lawyer’s ex parte communications, they have
explicitly said so. See Rules of Professional Conduct
3.5 (‘‘[a] lawyer shall not: (1) Seek to influence a judge,
juror, prospective juror or other official by means pro-
hibited by law; (2) Communicate ex parte with such a
person during the proceeding unless authorized to do
so by law or court order’’ (emphasis added)); Rules of
Professional Conduct 4.2 (‘‘[i]n representing a client, a
lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is
authorized by law to do so’’). No such language, how-
ever, appears in Practice Book § 13-4.
In the absence of explicit language in Practice Book
§ 13-4 prohibiting ex parte communications by counsel
with experts who have been disclosed by their oppo-
nents as possible trial witnesses, we must look more
broadly at § 13-4 to determine whether it, as the trial
court concluded, otherwise implicitly prohibits such ex
parte communications, and, if so, whether it is ‘‘reason-
ably clear’’ in alerting attorneys to that prohibition. On
the basis of our review of the rule, we cannot so con-
clude.
The trial court appears to have held that the plaintiff
in error clearly violated Practice Book § 13-4 because
the ex parte communications in this case fell outside
of the prescribed formal discovery procedures set forth
therein and were, therefore, forbidden by our rules. In
arriving at this conclusion, the court cited to a 1993
formal opinion of the American Bar Association’s Com-
mittee on Ethics and Professional Responsibility (ABA
Committee), Formal Opinion 93-378, titled ‘‘Ex Parte
Contacts with Expert Witnesses.’’ See A.B.A. Commit-
tee on Ethics and Professional Responsibility, Formal
and Informal Ethics Opinions 1983–1998 (2000) p. 213.
In that formal opinion, the ABA Committee opined that,
‘‘[a]lthough the [American Bar Association’s] Model
Rules [of Professional Conduct] do not explicitly pro-
hibit ex parte contacts with an opposing party’s expert
witness, a lawyer who engages in such contacts may
violate Model Rule 3.4 (c)13 if the matter is pending in
federal court or in a jurisdiction that has adopted an
expert-discovery rule patterned after Federal Rule of
Civil Procedure 26 (b) (4) (A).’’ (Emphasis added; foot-
note added). Id. In reaching that conclusion, the ABA
Committee cited to two decisions on the issue from the
U.S. Court of Appeals for the Ninth Circuit, which had
held that ex parte communications with the opposing
party’s expert witness constituted violations of the fed-
eral discovery rules then in effect. Id., p. 215; see Ameri-
can Protection Ins. Co. v. MGM Grand Hotel-Las Vegas,
Inc., 748 F.2d 1293 (9th Cir. 1984), withdrawn by Ameri-
can Protection Ins. Co. v. MGM Grand Hotel-Las Vegas,
Inc., 765 F.2d 925, 926 (9th Cir. 1985); Campbell Indus-
tries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980). Relying
on these authorities, the trial court in the present case
stated that, because Practice Book § 13-4 is a ‘‘ ‘mirror
image’ ’’ of rule 26 (b) (4) of the Federal Rules of Civil
Procedure, which, in the court’s view, provides ‘‘spe-
cific, mandatory and exclusive procedures’’ for the con-
duct of expert discovery, it is clear that our ‘‘rules do
not authorize, and thus implicitly forbid, counsel from
making ex parte contact with the opposing party’s dis-
closed expert.’’
Our reading of Practice Book § 13-4 mandates a dif-
ferent conclusion. As an initial matter, it appears that
the trial court’s ruling is predicated on outdated authori-
ties. To be sure, the court relies almost exclusively on
the ABA Committee’s 1993 formal opinion (and the
cases cited therein), which in turn was based on a pre-
1993 version of rule 26 (b) (4) of the Federal Rules of
Civil Procedure. The pre-1993 version of the federal
rule contained language expressly providing that the
rule set forth therein described the exclusive means
by which a party could obtain discovery from expert
witnesses. See Fed. R. Civ. P. 26 (b) (4) (1992) (‘‘[d]is-
covery of facts known and opinions held by experts,
otherwise discoverable under the provisions of subdivi-
sion (b) (1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be obtained
only as follows’’ (emphasis added)); see also Campbell
Industries v. M/V Gemini, supra, 619 F.2d 26 n.1 (citing
pre-1993 federal expert discovery rule). Because the
rules at that time provided the exclusive means for
conducting discovery of expert witnesses, some courts
reasoned that ex parte communications were prohib-
ited because they fell outside the prescribed methods
for discovery. See Erickson v. Newmar Corp., 87 F.3d
298, 301 (9th Cir. 1996) (‘‘[a]t the time of the present
litigation, Federal Rule of Civil Procedure 26 (b) (4)
provided that a lawyer’s permissible contact with an
opposing party’s expert was limited to interrogatories
and, upon leave of the court, depositions’’). In 1993,
however, rule 26 (b) (4) was amended, inter alia, by
removing therefrom the phrase ‘‘[d]iscovery . . . may
be obtained only as follows . . . .’’ Accordingly, the
current form of rule 26 (b) (4) contains none of the
limiting language that was previously set forth in the
rule upon which the ABA Committee relied in its 1993
formal opinion.
Furthermore, and of particular importance here,
although previous versions of Practice Book § 13-4, like
previous versions of rule 26 (b) (4) of the Federal Rules
of Civil Procedure, contained limiting language regard-
ing expert discovery, that limiting language was elimi-
nated from Practice Book § 13-4 in 2009 when major
revisions to the rule took effect. Practice Book (2009)
§ 13-4, history. Before that time, the expert witness
provision of our rules of practice provided in relevant
part: ‘‘Discovery of facts known and opinions held by
experts, otherwise discoverable under the provisions
of Section 13-2 and acquired or developed in anticipa-
tion of litigation or for trial, may be obtained only as
follows . . . .’’ (Emphasis added.) Practice Book
(2008) § 13-4. Beginning in 2009, however, such lan-
guage was eliminated from § 13-4 and additional
changes were made. See Practice Book (2009) § 13-4.
Although courts interpreting expert discovery rules
premised on the pre-1993 federal rules and the pre-2009
Connecticut rules might have had some textual support
for their conclusion that ex parte communications with
experts disclosed by their opponents as potential wit-
nesses at trial were prohibited because the rules pre-
scribed the exclusive means for obtaining expert dis-
covery, we have not found any language in our current
rules that would allow us to interpret them in this man-
ner.
We thus find unsupportable the court’s holding, predi-
cated on the ABA Committee’s 1993 formal opinion,
that, because ex parte communications with a disclosed
expert are not expressly permitted by Practice Book
§ 13-4, such communications must implicitly be forbid-
den. Although, to reiterate, the trial court’s analysis may
have been reasonable under earlier versions of our rules,
we have found no support for such a limited reading in
our current rules.
Another way in which Practice Book § 13-4 differs
from the federal rules of expert discovery is its inclusion
of § 13-4 (e),14 which explicitly establishes a procedure
by which a party can adopt and make use of an expert
already disclosed by another party. It provides that in
a party’s notice of disclosure for an expert who was
previously disclosed as a testifying expert by another
party, a party shall adopt all or a specified part of the
other party’s disclosure and shall disclose ‘‘other expert
opinions to which the witness is expected to testify
and the substance of the grounds for any such expert
opinion.’’ Practice Book § 13-4 (e). This provision does
not expressly or implicitly prohibit ex parte communi-
cations between the lawyer making the disclosure pur-
suant to § 13-4 and the expert so disclosed. See Practice
Book § 13-4 (e). To the contrary, it implicitly suggests
that some sort of communication may be required
between the opposing counsel and the previously dis-
closed expert in order to facilitate the disclosure
required by § 13-4 (e), particularly because that provi-
sion requires an attorney to disclose any other opinions
to which the expert is expected to testify and the
grounds therefor, which may be quite different, both
in their nature and in the expert’s reasons for holding
them, from all other opinions and the grounds support-
ing them that the opposing party previously disclosed.
Counsel cannot ethically make an expert disclosure
under Practice Book § 13-4 based upon mere guess-
work, and so he or she must somehow ascertain the
nature and substance of an expert’s opinions before
filing the disclosure.15 See Rules of Professional Con-
duct 3.1 (‘‘[a] lawyer shall not bring or defend a proceed-
ing, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not
frivolous, which includes a good faith argument for an
extension, modification or reversal of existing law’’);
Rules of Professional Conduct 3.3 (‘‘[a] lawyer shall not
knowingly: (1) Make a false statement of fact or law to
a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the law-
yer’’).
At bottom, we cannot conclude that Practice Book
§ 13-4 is ‘‘reasonably clear’’ in alerting attorneys that
they are prohibited from having ex parte communica-
tions with experts who have been disclosed by their
opponents as possible trial witnesses. We also have
found no case law in this state that makes it reasonably
clear that such conduct is prohibited. Indeed, the trial
court itself recognized that there was ‘‘no Connecticut
authority directly dealing with this issue . . . .’’ Attor-
neys practicing in Connecticut courts must be able to
consult our rules and be able to rely upon them to
clearly define appropriate and inappropriate conduct.
We have no occasion to take a position on whether
ex parte communications with an opposing party’s dis-
closed expert should or should not be permissible; we
simply hold today that Practice Book § 13-4 does not
clearly prohibit such conduct.16 Because we cannot con-
clude that the ex parte communications at issue in this
case were proscribed by our rules or, thus, that it was
wrongful to engage in them, the sanction of requiring
counsel, on the basis of such communications, to pay
all expenses incurred by his opponent for the services
of the expert so communicated with cannot stand. Put
differently, because the ex parte communications at
issue were not impermissible under § 13-4, the trial
court’s justification for the sanction in this case based
on its findings that the plaintiff in error’s conduct was
‘‘wrongful’’ and ‘‘caused the defendant [in error] to lose’’
its disclosed expert is clearly erroneous. (Emphasis
omitted.) The ‘‘loss’’ of Depuy cannot be said to have
been caused by wrongful conduct of the plaintiff in
error. Rather, any ‘‘loss’’ of Depuy must be attributed
to the plaintiff in error’s questioning of Depuy at a
deposition, when Depuy testified favorably to the plain-
tiff in error by stating that if he were presented with
evidence that Epright had been complaining of shoulder
pain since the time of the accident (which she had
testified to at her own deposition prior to the defendant
in error’s disclosure of Depuy), his opinion as to causal-
ity might, indeed, be different. The plaintiff in error’s
subsequent conduct in having its paralegal contact Depuy
to provide him a more complete body of relevant evi-
dence (i.e., Epright’s deposition transcripts demonstra-
ting her persistent complaints of shoulder pain since
the date of the accident) and providing Depuy with an
opportunity to do a physical examination of Epright
(instead of solely reviewing a sampling of medical records
selected by counsel for the defendant in error) is devoid
of any indication that the plaintiff in error was thereby
attempting impermissibly to influence Depuy not to
testify or to testify falsely.
In concluding that the ex parte communications in
this case were improper, the court stated that ‘‘counsel
need to be able to have candid discussions with their
experts, and be allowed to cogently present their side
of the case through the disclosed expert.’’ (Emphasis
in original.) The court reasoned that if it were to con-
done the ex parte communications at issue, ‘‘the defen-
dant [in error] would be prevented from presenting the
evidence at trial in a way that fits its story of the case,
which it has a right to do.’’
The court’s rationale, however, fails to recognize two
important points. First, ‘‘no party to litigation has any-
thing resembling a proprietary right to any witness’s
evidence. Absent a privilege, no party is entitled to
restrict an opponent’s access to a witness, however
partial or important to him, by insisting upon some
notion of allegiance.’’17 Doe v. Eli Lilly & Co., 99 F.R.D.
126, 128 (D.D.C. 1983); see id. (‘‘[e]ven an expert whose
knowledge has been purchased cannot be silenced by
the party who is paying him on that ground alone’’). As
this court has stated, ‘‘[t]here is no justification for a
‘rule that would wholly exempt experts from placing
before a tribunal factual knowledge relating to the case
in hand [or] opinions already formulated . . . .’ ’’ Lane
v. Stewart, 46 Conn. App. 172, 176, 698 A.2d 929, cert.
denied, 243 Conn. 940, 702 A.2d 645 (1997); see also
Thomaston v. Ives, 156 Conn. 166, 167, 173–74, 239 A.2d
515 (1968) (landowner in eminent domain proceeding
may require appraiser hired by state, whom state did not
call, to testify concerning valuation of land); Loiseau
v. Board of Tax Revenue, 46 Conn. App. 338, 345, 699
A.2d 265 (1997) (‘‘[t]hat the plaintiffs might have the
opportunity to cross-examine a defense expert does not
provide fair access if the defendant chooses not to call
the expert as a witness’’).
Second, once an expert is disclosed, the status of
that expert changes. Prior to the disclosure, the expert
likely served as a consultant to the attorney who, thus,
in the absence of exceptional circumstances, was a
person about whom the other party had no right to
demand information through discovery. See Practice
Book § 13-4 (f).18 In the absence of exceptional circum-
stances, the attorney can prevent his or her opponent
from acquiring information about a consulting expert
simply by refraining from disclosing him or her as a
person who might testify at trial. See Practice Book
§ 13-4 (f). The rule is intended to allow litigants to
consult experts in order to evaluate a claim ‘‘without
fear that every consultation with an expert may yield
grist for the adversary’s mill.’’ Rubel v. Eli Lilly & Co.,
160 F.R.D. 458, 460 (S.D.N.Y. 1995); see also Petterson
v. Superior Court of Merced County, 39 Cal. App. 3d
267, 273, 114 Cal. Rptr. 20 (1974) (explaining that rule
precluding discovery of consultative experts is ‘‘a shield
to prevent a litigant from taking undue advantage of
his adversary’s industry and effort, not a sword to be
used to thwart justice’’).
Following an expert disclosure, however, a transfor-
mation occurs. By making the disclosure, the attorney
essentially certifies to the court and the opposing party
that the expert is no longer a consultant but someone
who has relevant ‘‘scientific, technical or other special-
ized knowledge’’ that can ‘‘assist the trier of fact in
understanding the evidence or in determining a fact in
issue.’’ Conn. Code Evidence § 7-2; see Lane v. Stewart,
supra, 46 Conn. App. 177 (‘‘[b]y disclosing the witness,
the defendant made it possible for the plaintiffs to dis-
cover evidence that the plaintiffs decided was beneficial
to their case and should be brought before the trier of
fact’’). Because a disclosed expert has been identified
as someone who can help the fact finder ascertain the
truth in the matter, the opposing party is permitted to
acquire information about the expert in connection with
his or her opinions, even if some of that information
may be helpful to the opposing party’s case. This, in
fact, is why our rules allow depositions of expert wit-
nesses; see Practice Book § 13-4 (c); and require that the
disclosing party, in the absence of certain exceptions,
‘‘produce to all other parties all materials obtained,
created and/or relied upon by the expert in connection
with his or her opinions in the case . . . .’’ Practice
Book § 13-4 (b) (3). Such materials logically and neces-
sarily include all communications between the expert
and the attorney who hired him concerning the case,
including communications from the attorney to the
expert as to his theory of the case and his hopes or
expectations as to the nature and substance of the
expert’s opinions about the case. See, e.g., In re Pioneer
Hi-Bred International, Inc., 238 F.3d 1370, 1375 (Fed.
Cir. 2001) (The federal expert witness discovery rule
‘‘proceeds on the assumption that fundamental fairness
requires disclosure of all information supplied to a testi-
fying expert in connection with his testimony. Indeed,
we are quite unable to perceive what interests would
be served by permitting counsel to provide core work
product to a testifying expert and then to deny discovery
of such material to the opposing party.’’).
It inevitably follows that once a party has had a
chance to acquire information about an opposing par-
ty’s disclosed expert, such party may wish to present
that expert’s testimony at trial, especially if that expert
agrees with that party on one or more issues in dispute.
Our rules of practice contemplate this. As previously
explained, Practice Book § 13-4 (e) establishes a proce-
dure by which a party can adopt and make use of an
expert already disclosed by another party. The party
must file a disclosure that states that it is adopting the
prior disclosure in whole or in part, and, to the extent
the expert is making a new opinion, the party must
disclose the ‘‘other expert opinions to which the witness
is expected to testify and the substance of the grounds
for any such expert opinion. . . .’’ Practice Book § 13-
4 (e).
Our decision in Lane v. Stewart, supra, 46 Conn.
App. 177, further highlights the significance of an expert
disclosure. In Lane, a personal injury action, the defen-
dant retained and disclosed an expert witness who was
deposed by the plaintiffs. Id., 174–75. Soon thereafter,
the defendant, for tactical reasons, decided not to call
its expert at trial and sought to quash the subpoena
duces tecum served on its expert by the plaintiffs. Id.,175–76. The trial court in that case granted the motion
to quash, but this court held that the granting of the
motion to quash was an abuse of discretion. Id., 175,
177. This court reasoned that, ‘‘[b]y disclosing the wit-
ness, the defendant made it possible for the plaintiffs
to discover evidence that the plaintiffs decided was
beneficial to their case and should be brought before
the trier of fact. To allow the defendant to prevent this
witness from testifying may have deprived the trier of
fact of material and relevant information that would
have assisted it in reaching a decision in the case.’’ Id.,
177. We thus held that, ‘‘where one party has disclosed
an expert witness pursuant to Practice Book § 220 (D)
[now Practice Book § 13-4], and that expert witness
has either been subsequently deposed by the opposing
party, or the expert’s report has been disclosed pursu-
ant to discovery, then either party may call that expert
witness to testify at trial.’’ Id.
Lane, of course, was decided before the addition of
Practice Book § 13-4 (e) to our rules of practice, which
provides an avenue for an opposing party to disclose
an opponent’s previously disclosed expert witness as
an expert she also wishes to call at trial. Nevertheless,
a logical interpretation of § 13-4 (e), in light of Lane,
is that a party who has complied with the disclosure
requirements of § 13-4 (e) should generally be permitted
to call that previously disclosed expert to testify at trial.
See id. To hold otherwise would deprive ‘‘the trier of
fact of material and relevant information that would
have assisted it in reaching a decision in the case.’’ Id.
The judgment is reversed and the case is remanded
with direction to render judgment denying the defen-
dant in error’s motion for sanctions.
In this opinion the other judges concurred.
1
We note that the writ of error also named Timothy Brignole, an attorney
with Brignole, Bush & Lewis, LLC, as a plaintiff in error.
2
We note that the plaintiff in error, on behalf of Epright, filed an interlocu-
tory appeal simultaneously with its writ of error. The appeal challenged the
trial court’s order disqualifying Depuy from testifying at trial. See Epright
v. Liberty Mutual Ins. Co., 211 Conn. App. 26, 26, 271 A.3d 731 (2022). This
court dismissed Epright’s appeal for lack of subject matter jurisdiction
because the challenged interlocutory order is not a final judgment for pur-
poses of appeal. Id.3
In its briefing before this court, the plaintiff in error also argues that it
was inappropriate for the court to disqualify Depuy as an expert witness.
We note that the only issue that we address on this writ of error is the
appropriateness of the sanction of expenses in the amount of $12,895. This
is the only claim that the plaintiff in error has standing to raise at this
juncture. To the extent that the plaintiff in error would like to challenge
the disqualification of Depuy in the underlying matter, that would be the
prerogative of its client, Epright, who may file an appeal after there is a
final judgment in the underlying action. See Epright v. Liberty Mutual Ins.
Co., 211 Conn. App. 26, 26, 271 A.3d 731 (2022).
4
The trial court noted that ‘‘[t]his correspondence directly contradicts
the following statement in Attorney [Timothy] Brignole’s affidavit, dated
March 15, 2019: ‘I have never ever spoken to Dr. Depuy in person, via e-mail,
via letter, via fax or any other type of communication.’ ’’
5
The record discloses that Epright’s deposition was taken on June 21,
2017, which was approximately two months prior to the defendant in error’s
disclosure of Depuy as an expert witness and the issuance of Depuy’s
independent medical record review. Depuy issued two subsequent addenda
to his medical record review report, one on October 8, 2017, and another
on November 18, 2018. Neither of these submissions took into consideration
Epright’s deposition testimony concerning her shoulder injury.
6
The full text of Practice Book § 13-4 (e) provides: ‘‘If any party expects
to call as an expert witness at trial any person previously disclosed by any
other party under subsection (b) hereof, the newly disclosing party shall
file a notice of disclosure: (1) stating that the party adopts all or a specified
part of the expert disclosure already on file; and (2) disclosing any other
expert opinions to which the witness is expected to testify and the substance
of the grounds for any such expert opinion. Such notice shall be filed within
the time parameters set forth in subsection (g).’’
7
For example, the court stated that the plaintiff in error ‘‘could have
cross-examined Dr. Depuy at his deposition using [Epright’s] deposition,
which Dr. Depuy said he had not read. [The plaintiff in error] could have
also suspended Dr. Depuy’s deposition until he read [Epright’s] deposition.
In addition, they could have waited for trial and cross-examined Dr. Depuy,
on the stand, to elicit the desired information. Or, finally, they could have had
another expert (they had two disclosed) opine on the same subject matter.’’
8
The court explicitly found, however, that the plaintiff in error did not
violate the Rules of Professional Conduct, to wit, rule 3.4 (3), because
the court took counsel at their word that they thought their conduct was
permissible.
9
On July 8, 2019, the plaintiff in error, on behalf of Epright, filed a motion
to reargue and reconsider the defendant in error’s motion to disqualify
Depuy. The court denied the motion on September 9, 2019, concluding that
Epright had not presented any additional facts or law that were not raised
or could have been raised in her original filings.
10
In support of its ruling on the motion for expenses, the court incorpo-
rated by reference the analysis it employed in its previous opinion regarding
Depuy’s disqualification. The court stated in relevant part: ‘‘While this court
made no explicit order against hiring opposing counsel’s expert, that action
goes against common sense and numerous prescribed procedural rules as
explained in this court’s previous opinion on disqualification.’’
11
As discussed in greater detail subsequently in this opinion, Millbrook
Owners Assn., Inc., sets forth the three part test to determine whether
sanctions for a violation of a discovery order withstand scrutiny. See Mill-
brook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 17–18.
12
Practice Book § 13-4 (h) further provides in relevant part: ‘‘An order
precluding the testimony of an expert witness may be entered only upon a
finding that: (1) the sanction of preclusion, including any consequence
thereof on the sanctioned party’s ability to prosecute or to defend the case,
is proportional to the noncompliance at issue, and (2) the noncompliance
at issue cannot adequately be addressed by a less severe sanction or combina-
tion of sanctions.’’
13
At that time, rule 3.4 of the American Bar Association’s Model Rules of
Professional Conduct provided in relevant part: ‘‘ ‘A lawyer shall not . . .
(c) knowingly disobey an obligation under the rules of a tribunal except
for an open refusal based on an assertion that no valid obligation exists
. . . .’ ’’ (Footnote omitted.) A.B.A. Committee on Ethics and Professional
Responsibility, supra, p. 213. Rule 3.4 of the Rules of Professional Conduct
similarly provides in relevant part: ‘‘A lawyer shall not . . . (3) [k]nowingly
disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists . . . .’’
14
See footnote 6 of this opinion for the full text.
15
Although the precise issue before this court is whether the ex parte
communication at issue is sanctionable under Practice Book § 13-4, we take
a moment to address the January 22 disclosure of Depuy. In this disclosure,
Epright stated, inter alia, that ‘‘[t]he expert ascertained through his review
of [Epright’s] medical records, review of [Epright’s] deposition testimony
and independent medical evaluation performed on [Epright] that on Decem-
ber 14, 2012, she was involved in a motor vehicle accident wherein she
sustained injuries to her neck and shoulders, as a result of the accident.’’
Although the plaintiff in error, on the basis of Depuy’s deposition testimony,
had a good faith basis to believe that Depuy would testify that Epright’s
injuries were caused by the motor vehicle accident, the plaintiff in error
should have stated the actual basis for its disclosure and expressed its
intention of having Depuy review the deposition transcripts and perform a
medical evaluation, rather than suggesting that a deposition review and
medical examination had already been conducted.
16
That is not to say that there are no ethical restrictions that apply to
ex parte communications with expert witnesses. For example, the ethical
restrictions that have been developed for ex parte communications with
fact witnesses similarly apply to expert witnesses. See, e.g., General Statutes
§ 53a-151 (‘‘[a] person is guilty of tampering with a witness if, believing that
an official proceeding is pending or about to be instituted, he induces or
attempts to induce a witness to testify falsely, withhold testimony, elude
legal process summoning him to testify or absent himself from any official
proceeding’’); Rules of Professional Conduct 3.4 (‘‘[a] lawyer shall not . . .
[f]alsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law’’); Rules of Professional
Conduct 4.1 (‘‘[i]n the course of representing a client a lawyer shall not
knowingly: (1) Make a false statement of material fact or law to a third
person’’); Rules of Professional Conduct 4.2 (generally, attorneys must
abstain from contact with represented person); Rules of Professional Con-
duct 4.3 (attorney who is ‘‘dealing on behalf of a client with a person who
is not represented by counsel . . . shall not state or imply that the lawyer
is disinterested’’); Rules of Professional Conduct 4.4 (‘‘[i]n representing a
client, a lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such a person’’).
To the extent the legislature or the judges of the Superior Court in the
exercise of their inherent rule-making authority do not believe the ethical
restrictions already in place are sufficient, it is, of course, their prerogative
to enact a law or rule that clearly prohibits ex parte communications with
a testifying expert disclosed by another party. At least one state has done
so. See Idaho R. Civ. P. 26 (b) (4) (v) (‘‘Limitation on Contact With Expert.
A party must not contact a retained expert disclosed by another party
pursuant to this Rule without first obtaining the permission of the party
who retained the expert or by the court.’’).
17
As another court aptly put it: ‘‘It would, though, appear that the underly-
ing factor which causes the courts to treat expert testimony somewhat
differently from testimony of other witnesses is that the party has an invest-
ment in the witness. Somehow it is believed that he has bought and paid
for the witness and that the other party should not share in his property.
We cannot accept this ‘oath helper’ approach to discovery. It is inconsistent
with our basic assumption that the trial is a search for truth and not a
tactical contest which goes to either the richest or to the most resourceful
litigant.’’ Seven-Up Bottling Co. v. United States, 39 F.R.D. 1, 2 (D. Colo.
1966).
18
Practice Book § 13-4 (f) provides: ‘‘A party may discover facts known
or opinions held by an expert who had been retained or specially employed
by another party in anticipation of litigation or preparation for trial and
who is not expected to be called as a witness at trial only as provided in
Section 13-11 or upon a showing of exceptional circumstances under which
it is impracticable for the party seeking discovery to obtain facts or opinions
on the same subject by other means.’’