Gianetti v. Neigher ( 2022 )

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CHARLES D. GIANETTI v. ALAN NEIGHER
(AC 44320)
Bright, C. J., and Prescott and Moll, Js.
Syllabus
The plaintiff physician sought to recover damages from the defendant attor-
ney for his alleged legal malpractice in connection with his representa-
tion of the plaintiff in a prior breach of contract action against a hospital.
During the pendency of the breach of contract action, the trial court
denied the plaintiff’s motion for leave to amend his complaint to add a
count asserting a violation of the Connecticut Unfair Trade Practices
Act (CUTPA) (§ 42-110a et seq.). After the court found in favor of the
plaintiff and awarded him damages on his breach of contract claims,
the defendant commenced a separate action against the hospital, alleging
a violation of CUTPA. The trial court in that action rendered judgment
for the hospital, concluding that the CUTPA claim was barred by the
applicable statute of limitations (§ 42-110g (f)). The plaintiff thereafter
brought this legal malpractice action, claiming that the defendant had
committed professional negligence by failing to timely bring the CUTPA
claim and a claim of tortious interference with business expectancies
against the hospital. Pursuant to the applicable rule of practice (§ 13-
4), the plaintiff disclosed an attorney, S, as an expert witness who would
testify at trial. The plaintiff did not disclose S’s opinions at that time.
After the trial court extended the trial date and discovery deadlines
several times, the defendant filed motions to preclude S from testifying
at trial and for summary judgment. The defendant claimed that the
plaintiff’s expert witness disclosure was not in conformance with the
requirements of Practice Book § 13-4 and that summary judgment was
required because, in the absence of expert testimony, the plaintiff could
not prevail on his legal malpractice claims. The court again continued
the trial date and extended the plaintiff’s deadline for the disclosure of
expert witnesses. Two weeks after the court-ordered deadline for the
disclosure of expert witnesses, the plaintiff again disclosed that S would
be the expert he planned to call to testify at trial. The plaintiff disclosed
that S would testify that the defendant had breached the standard of
care he owed to the plaintiff in the prior action and that the breach caused
the plaintiff to sustain damages. The defendant thereafter deposed S,
who testified in his deposition, inter alia, that, although he had received
sixteen boxes of materials from the defendant’s representation of the
plaintiff in the prior action, he was not authorized to read that material,
he would not read it until he received authorization to do so and that
the plaintiff’s counsel had instructed him not to review the documents
or spend much time preparing for the deposition. S further testified that
the plaintiff’s counsel had told him that he could opine as to the elements
of legal malpractice in light of certain facts that S could assume the
plaintiff hoped to prove at trial. S also testified that he had not read
the fact finder’s decision in the prior action or spoken to the expert
witnesses who testified in that action. The defendant again filed motions
to preclude S from testifying at trial as an expert witness and for sum-
mary judgment. The trial court granted both motions and rendered
judgment for the defendant, concluding, inter alia, that the plaintiff’s
disclosure did not comply with the requirements of § 13-4 in that it
failed to set forth an expert opinion concerning causation and damages
as well as the factual bases for S’s opinions. On the plaintiff’s appeal
to this court, held:
1. This court could not conclude that the trial court abused its discretion
by precluding S from testifying at trial and determining that the sanction
of preclusion was proportional to the plaintiff’s noncompliance with
the disclosure requirements of Practice Book § 13-4: the plaintiff failed
to set forth any expert opinion as to the legal malpractice elements of
causation and damages, he did not supplement his disclosure of S to
add such opinions, he failed to provide the substance of the grounds
for each of the disclosed opinions, and he abused the discovery process
by engaging in gamesmanship that prevented S from learning the perti-
nent facts of the prior action, thereby thwarting the defendant’s ability
to ascertain what S likely would opine at trial; moreover, S admitted
that he had done limited legal research and lacked knowledge about
the prior action, and the affidavit he submitted in opposition to the
defendant’s summary judgment motion showed that S reviewed only
limited and selective materials from the prior action and that his opinions
were untethered to facts in the record, as he admitted that they were
based on hypothetical facts and facts that he expected to be brought
out at trial; furthermore, the court reasonably could have concluded
that the plaintiff’s noncompliance and discovery abuse could not be
addressed by a less severe sanction or combination of sanctions, as
the trial date had been continued eight times, the plaintiff had ample
opportunity to disclose a prepared, informed expert or to ensure that
S was apprised of the pertinent facts, and a less severe sanction or
combination of sanctions would have the practical effect of rewarding
the plaintiff’s pattern of game-playing, as S did not review the file during
the two months between the two days of his deposition and another
continuance to allow him more time to review the file would require
the defendant to conduct additional discovery.
2. The plaintiff could not prevail on his claim that the trial court improperly
granted the defendant’s motion for summary judgment; summary judg-
ment was required because, in the absence of expert testimony, the
plaintiff could not prevail on his legal malpractice claims, as he could
not establish the applicable standard of care that the defendant owed
to the plaintiff and whether the defendant breached that standard of
care by not initiating CUTPA and tortious interference with business
expectancies claims against the hospital in the prior action, and, thus,
contrary to the plaintiff’s contention, there was no genuine issue of
material fact as to causation and damages.
Argued March 3—officially released August 9, 2022
Procedural History
Action to recover damages for the defendant’s alleged
legal malpractice, and for other relief, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk, where the court, Hon. Edward T. Krumeich II,
judge trial referee, granted the defendant’s motions to
preclude certain evidence and for summary judgment
and rendered judgment for the defendant, from which
the plaintiff appealed to this court. Affirmed.
Kenneth A. Votre, with whom, on the brief, was
Anthony J. Beale, for the appellant (plaintiff).
Robert C. E. Laney, with whom, on the brief, was
Ryan T. Daly, for the appellee (defendant).
Opinion
PRESCOTT, J. This appeal arises out of a legal mal-
practice action brought by the plaintiff, Charles D. Gia-
netti, against the defendant, Alan Neigher, an attorney
who represented the plaintiff in a prior civil action
(prior action) against Norwalk Hospital (hospital). The
plaintiff appeals from the summary judgment rendered
by the trial court in favor of the defendant. On appeal,
the plaintiff claims that the court improperly granted
the defendant’s motion to preclude the testimony of the
plaintiff’s expert witness, Attorney Bruce H. Stanger,
because (1) the sanction of precluding the testimony
was not proportional to the plaintiff’s noncompliance
with the expert disclosure requirements set forth in
Practice Book § 13-4,1 which the plaintiff contends
could have been adequately remedied by a less severe
sanction, and (2) in so sanctioning the plaintiff, the
court improperly determined that the expert’s opinion
was not supported by a sufficient factual basis.2 The
plaintiff additionally claims that the court improperly
rendered summary judgment because (1) the court
failed to consider the testimony of his expert witness,
and (2) even if the court properly precluded the testi-
mony of his expert witness, a genuine issue of material
fact nonetheless existed as to the legal malpractice
elements of causation and damages.3 We affirm the judg-
ment of the court.
The following facts and procedural history, both in
the present legal malpractice action and arising out of
the defendant’s representation of the plaintiff in the
prior action, are relevant to our resolution of this
appeal. ‘‘The plaintiff [was] a physician who special-
ize[d] in the field of plastic and reconstructive surgery.
In 1974, the plaintiff was granted provisional clinical
privileges as a member of the . . . medical staff [of the
hospital]. In 1976, the plaintiff was granted full clinical
privileges as an assistant attending staff physician [for
the hospital]. The plaintiff’s privileges were renewed
on an annual basis through 1983. . . .
‘‘In 1983, the plaintiff applied for the renewal of privi-
leges for 1984. On the basis of the recommendations
of the hospital’s department of surgery, section of plas-
tic and reconstructive surgery and credentials commit-
tee, the medical staff of the hospital declined to renew
the plaintiff’s privileges for 1984. The hospital’s board
of trustees subsequently ratified the decision of the
medical staff. . . .
‘‘In response to the [hospital’s decision not to renew
his] privileges [for 1984], the plaintiff [initiated] the
[prior] action against the hospital4 in December, 1983
. . . .’’ (Footnote added; footnote omitted.) Gianetti v.
Norwalk Hospital, 266 Conn. 544, 547–48, 833 A.2d 891(2003). The defendant represented the plaintiff in the
prior action. In his complaint, the plaintiff alleged
breach of contract and antitrust violations. See Gianetti
v. Norwalk Hospital, 211 Conn. 51, 52, 557 A.2d 1249(1989). The matter thereafter was assigned to an attor-
ney trial referee. See Gianetti v. Norwalk Hospital,
supra, 266 Conn. 548.
On March 11, 1987; see Gianetti v. Norwalk Hospital,
supra, 211 Conn. 52; ‘‘[the] attorney trial referee . . .
concluded in [a] report that . . . the hospital, through
its employees and agents, had breached [its] contract
[with the plaintiff] by failing to follow the procedural
requirements of its bylaws in declining to renew the
plaintiff’s privileges.’’ Gianetti v. Norwalk Hospital,
supra, 266 Conn. 548. On July 18, 1993, the trial court
accepted the attorney trial referee’s report; see Gianetti
v. Norwalk Hospital, 304 Conn. 754, 760, 43 A.3d 567(2012); and ‘‘rendered [an interlocutory] judgment in
favor of the plaintiff on [his breach of contract claim
as to] the issue of liability.’’5 (Internal quotation marks
omitted.) Id.; see also Gianetti v. Norwalk Hospital,
supra, 266 Conn. 549. The court subsequently con-
ducted a hearing to determine the appropriate remedy
and, on September 9, 1999, awarded the plaintiff nomi-
nal damages. See Gianetti v. Norwalk Hospital, supra,
304 Conn. 761.
The plaintiff appealed from the court’s award of nomi-
nal damages and, after this court; see Gianetti v. Nor-
walk Hospital, 64 Conn. App. 218, 779 A.2d 847 (2001),
rev’d in part, 266 Conn. 544, 833 A.2d 891 (2003); and
our Supreme Court; see Gianetti v. Norwalk Hospital,
supra, 266 Conn. 544; decided the appeal, the matter was
remanded to the trial court. See Gianetti v. Norwalk
Hospital, supra, 304 Conn. 763. On remand, the court
held a hearing in damages and, in a memorandum of
decision dated April 15, 2009, awarded the plaintiff
$258,610 plus costs on the breach of contract count.6
See id.In August, 1996, during the pendency of the prior
action and before the court had awarded him damages
for the hospital’s breach of contract, the plaintiff sought
leave to amend his complaint to add an additional count
asserting a violation of the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq. See Gianetti v. Norwalk Hospital, Superior Court,
judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-
S (September 9, 1999), rev’d on other grounds, 64 Conn.
App. 218, 779 A.2d 847 (2001), rev’d in part, 266 Conn.
544, 833 A.2d 891 (2003). The court, Rush, J., denied
the plaintiff’s motion for leave to amend the complaint.
See id. Subsequently, the defendant commenced, on the
plaintiff’s behalf, a separate action against the hospital,
alleging a violation of CUTPA. On April 9, 2002, the
court, Sheedy, J., granted the hospital’s motion for sum-
mary judgment as to the plaintiff’s CUTPA claim; see
Gianetti v. Norwalk Hospital, Superior Court, judicial
district of Fairfield, Docket No. CV-XX-XXXXXXX-S (April
9, 2002) (31 Conn. L. Rptr. 676, 678); and concluded
that the claim was time barred by the applicable three
year statute of limitations. See General Statutes § 42-
110g (f).
On May 14, 2015, the plaintiff initiated the present
legal malpractice action (present action) against the
defendant in connection with the defendant’s represen-
tation of the plaintiff in the prior action. In his revised,
operative complaint, dated February 27, 2017, the plain-
tiff alleged two counts of legal malpractice,7 one count
of violating CUTPA, one count of breach of fiduciary
duty, and one count of breach of contract. With respect
to the legal malpractice counts, the plaintiff contended
that, despite his having prevailed on the breach of con-
tract count against the hospital in the prior action and
having recovered $258,610 plus costs on that count; see
Gianetti v. Norwalk Hospital, supra, 304 Conn. 763;
the defendant nonetheless committed professional neg-
ligence by failing to timely bring against the hospital
claims of violation of CUTPA and tortious interference
with business expectancies in the prior action.
The court, Heller, J., entered a scheduling order on
October 15, 2015, which required the plaintiff to disclose
any expert witnesses he anticipated calling to testify at
trial by April 1, 2016, and scheduled the trial to com-
mence on April 25, 2017. On July 12, 2016, the court
granted the defendant’s motion to amend the court’s
scheduling order and, accordingly, modified the plain-
tiff’s deadline to disclose any expert witnesses he antici-
pated calling to testify at trial to August 8, 2016.
On November 1, 2016, the defendant filed a motion for
nonsuit, arguing that the plaintiff had failed to respond
sufficiently to interrogatories—including an interroga-
tory in which the defendant requested that the plaintiff
identify the expert witnesses he anticipated calling to
testify at trial—and requests for production that the
defendant had served on the plaintiff on July 6, 2015.
The court, Jacobs, J., denied the defendant’s motion
without prejudice and ordered ‘‘[t]he plaintiff . . . to
comply with [the defendant’s] interrogatories . . . and
requests [for] production . . . by’’ December 27, 2016.
On January 25, 2017, the defendant moved for a continu-
ance of the trial date, which the court, Mintz, J., granted
on February 1, 2017. The trial date was continued to
November 28, 2017.
The plaintiff responded to the defendant’s interroga-
tories on March 8, 2017. In his response, the plaintiff
for the first time named Stanger as an expert witness he
planned to call to testify at trial. The plaintiff, however,
merely stated the following in his response: ‘‘I expect
. . . Stanger . . . will testify as an expert witness at
the trial in this matter’’; the ‘‘[s]ubject matter [of Stang-
er’s testimony] [would] be [the] defendant’s [alleged]
professional negligence and legal malpractice’’; that
‘‘[s]uch facts and opinions [would] be supplemented as
required after review of [the plaintiff’s] revised com-
plaint and [after] discovery’’; and ‘‘[s]uch grounds for
each opinion [would] be supplemented as required after
review of [the plaintiff’s] revised complaint and [after]
discovery.’’ The plaintiff promised the defendant that he
would supplement his response by disclosing Stanger’s
opinions at a later date. The plaintiff, however, did not
supplement this response.
On April 10, 2017, the defendant moved to strike all
counts of the plaintiff’s complaint, including the legal
malpractice counts. On October 23, 2017, the court,
Jacobs, J., granted the defendant’s motion to strike the
plaintiff’s CUTPA, breach of fiduciary duty, and breach
of contract counts but denied the defendant’s motion
as to the legal malpractice counts. On October 26, 2017,
the defendant moved for a continuance of the trial date
from November 28, 2017, to July 16, 2018. On October
31, 2017, the court granted the motion and extended
the trial date to July 17, 2018.
On January 3, 2018, the defendant filed a motion for
judgment as to the CUTPA, breach of fiduciary duty,
and breach of contract counts, contending that the
plaintiff had failed to file a new pleading within fifteen
days of the court’s decision granting the defendant’s
motion to strike those counts. See Practice Book § 10-
44. The court granted the defendant’s motion on Janu-
ary 22, 2018.
On July 2, 2018, the defendant filed a motion to pre-
clude the plaintiff from introducing expert testimony
at trial as to the remaining malpractice counts. The
defendant contended that the plaintiff had failed to
disclose the expert witnesses that he planned to call
to testify at trial by August 8, 2016, as required by the
amended scheduling order. The defendant further
argued that, although the plaintiff had identified Stanger
in his March 8, 2017 response to the defendant’s inter-
rogatories, the plaintiff nonetheless had failed to satisfy
the requirements of Practice Book § 13-4.8 On or about
July 12, 2018, less than one week before trial was sched-
uled to begin, the plaintiff moved for a continuance of
the trial date and filed a case flow request seeking the
same. The court, Genuario, J., granted the plaintiff’s
case flow request, stating that the new trial schedule
would be determined soon thereafter at a status confer-
ence. Subsequently, the trial was continued to February
26, 2019, and, in a joint motion to modify the scheduling
order, the parties requested that a new deadline of Sep-
tember 7, 2018, be imposed for the plaintiff to disclose
any expert witnesses that he planned to call to testify
at trial. The court, Jacobs, J., granted the parties’ motion
on August 6, 2018, thereby setting a deadline of Septem-
ber 7, 2018, for the plaintiff to disclose expert witnesses.
In a motion to modify the scheduling order dated
December 7, 2018, the parties jointly requested that the
trial be continued to June 4, 2019, and a new deadline
of January 25, 2019, be imposed for the plaintiff to
disclose expert witnesses.9 The court, Genuario, J.,
granted the motion on January 7, 2019. On May 29, 2019,
the plaintiff moved for a continuance of the trial date,
and, on May 30, 2019, the court granted the plaintiff’s
motion and rescheduled the commencement of trial to
August 21, 2019.
On August 8, 2019, the defendant filed a second
motion to preclude the plaintiff from introducing expert
testimony at trial. The defendant argued that the plain-
tiff had failed to disclose the expert witnesses he
planned to call to testify at trial, despite his obligation to
do so under the court’s order. The defendant contended
that the sanction of preclusion of expert testimony was
proportional to the plaintiff’s failure to file an expert
witness disclosure, as required by Practice Book § 13-
4, particularly in light of the facts that (1) the plaintiff
had failed to file an expert witness disclosure by Janu-
ary 25, 2019, as mandated by the court, (2) the plaintiff
had failed to supplement his interrogatory response and
disclose Stanger’s opinions and their factual bases, and
(3) the trial was scheduled to commence in two weeks.
The defendant also filed a motion for summary judg-
ment on August 8, 2019. In his motion and accompa-
nying memorandum of law, the defendant argued that,
because the plaintiff failed to timely file an expert wit-
ness disclosure, the plaintiff should not be permitted
to present expert testimony at trial. The defendant spe-
cifically asserted that, in the absence of expert testi-
mony, the plaintiff would be unable to meet his burden
of proof with respect to the standard of care that the
defendant owed to the plaintiff, causation, or damages,
each of which the plaintiff was required to prove to
prevail on his legal malpractice claims.
On August 12, 2019, the plaintiff moved for a continu-
ance of the trial date ‘‘in order to finish discovery . . .
and respond to’’ the defendant’s August 8, 2019 motions.
The court granted the plaintiff’s motion and ordered
that the trial be scheduled either in January or February,
2020. The trial date subsequently was scheduled for
February 4, 2020. The court also extended the plaintiff’s
deadline to disclose expert witnesses to October 4,
2019.
On October 18, 2019—two weeks after the plaintiff’s
October 4, 2019 deadline to disclose expert witnesses—
the plaintiff filed a disclosure of expert witnesses in
which he disclosed Stanger as the expert witness he
planned to call to testify at trial. The plaintiff summarily
stated in the disclosure that he expected Stanger to
opine ‘‘as to the [standard] of care’’ that the defendant
owed to the plaintiff and that the defendant ‘‘failed to
meet the applicable standard of care’’ he owed to the
plaintiff when he represented the plaintiff in the prior
action. The plaintiff also stated therein that he expected
Stanger to testify about ‘‘Connecticut law applicable
to the [prior action],’’ including CUTPA. Finally, the
plaintiff stated that Stanger would testify that the defen-
dant breached the standard of care he owed to the
plaintiff by failing to timely bring a CUTPA claim against
the hospital, which ‘‘caused damages to the plaintiff.’’
The plaintiff provided in the disclosure that Stanger’s
opinions would ‘‘be based [on] his knowledge of the
case from review of the [prior action] and his experi-
ence as an attorney admitted in Connecticut.’’ On the
same day that the plaintiff filed the expert disclosure,
the defendant provided notice to the plaintiff that the
defendant would depose Stanger on November 6, 2019.
The deposition, however, did not take place on that day.
On November 25, 2019, the plaintiff filed a motion
for a protective order in which he claimed that the
defendant had withheld certain documents from him
and requested that the deposition be postponed until
after the defendant had produced the documents and
Stanger had an opportunity to review them. The court,
Hon. Edward T. Krumeich II, judge trial referee, later
determined in its memorandum of decision that the
defendant had in fact produced electronically the docu-
ments at issue long before the plaintiff filed the expert
disclosure. Additionally, Stanger testified during his
deposition that he had received the documents prior
to the first day of the deposition, but counsel for the
plaintiff had instructed him not to review the docu-
ments. In an order dated December 2, 2019, the court
ordered in relevant part: ‘‘By no later than [December
6, 2019], counsel shall select a mutually agreeable date
and time between [December 6 and 31, 2019] to sched-
ule and conduct [Stanger’s] deposition. If [Stanger] fails
to appear for [the] deposition on the date selected,
the defendant may move for the entry of sanctions,
including a judgment of nonsuit, by filing a motion that
references this order and the plaintiff’s failure to com-
ply.’’
The defendant conducted the first day of the deposi-
tion of Stanger on December 20, 2019. Stanger testified
at the deposition that he had spent ‘‘many, many hours’’
preparing to testify. He specifically stated that, to pre-
pare to testify at the deposition, he had reviewed some
of the decisions of our Supreme Court, this court,10 and
the Superior Court in the prior action, certain demand
letters in the prior action, and the complaint in the
present action. Stanger, however, admitted that he had
not reviewed the transcripts of the depositions taken
during the pendency of the prior action, the trial tran-
scripts from the prior action—apart from ‘‘[seeing] one
page’’ from a deposition transcript, the date and the
content of which he could not identify—or the deposi-
tion exhibits, trial exhibits, discovery materials, and
expert reports from the prior action. Stanger testified
that, apart from counsel for the plaintiff, he did not
speak to any individuals about the prior action, includ-
ing the expert witnesses called to testify at trial in that
action. Stanger further testified that he did not review
the hospital bylaws or the minutes of the hospital meet-
ings during which the medical staff decided not to
renew the plaintiff’s hospital privileges. Stanger also
stated that he had not read the fact finder’s decision
in the prior action, but that he ‘‘long[ed] to see’’ it.
Stanger additionally testified that, a few weeks before
the first day of the deposition, he had received a file
that consisted of ‘‘sixteen boxes’’ of materials from the
defendant’s representation of the plaintiff in the prior
action (file), which included, inter alia, deposition and
trial transcripts from the prior action. When Stanger
was asked whether he ‘‘only looked at what [counsel
for the plaintiff] asked [him] to look at,’’ Stanger replied,
‘‘[n]o. . . . [Counsel for the plaintiff] didn’t direct me
to [look at] very much. Whatever I looked at was proba-
bly, as I recall it, things that I already had in my [per-
sonal] file.’’ Additionally, the following colloquy
occurred:
‘‘[Stanger]: . . . I look forward to hearing the evi-
dence or reading the evidence after . . . I’m told to
read the . . . [file].
‘‘[The Defendant’s Counsel]: Have you been limited
in any way in the work that you’ve done so far?
‘‘[Stanger]: Yes.
‘‘[The Defendant’s Counsel]: How so?
‘‘[Stanger]: When [counsel for the plaintiff and I] saw
the scope of those [sixteen] boxes . . . we realized
that it was going to take a lot of time to review [the
materials therein]. . . . So, I have not been authorized.
I said to [counsel for the plaintiff], one of us has got
to look at this, either your office or me or mine, or a
third party, or somebody in order to understand this
better as you go forward with the depositions, and I
look forward to us dividing up that work.
‘‘[The Defendant’s Counsel]: So, let me see if I under-
stand that. You have not been authorized to look
through the sixteen boxes of . . . [materials from the
defendant’s representation of the plaintiff in the prior
action], correct?
‘‘[Stanger]: I have not been authorized to read them.
I can flip through them, as I did a couple of times, just
to see how they work . . . .
‘‘[The Defendant’s Counsel]: Okay. Has there been
any resolution to the issue of who is going to review
these sixteen boxes of [materials]?
‘‘[Stanger]: All I can say is, I have not been authorized
to review one or all. . . .
‘‘[The Defendant’s Counsel]: [Counsel for the plain-
tiff] hasn’t directed you to [specific items] in [the file]
as to where to look?
‘‘[Stanger]: Right.’’ (Emphasis added.)
Stanger iterated multiple times during the first day
of the deposition that he had not reviewed any of the
materials within the file, neither before the plaintiff had
filed the expert disclosure nor before the first day of
the deposition. Stanger additionally reiterated that he
would review materials in the file only once he was
‘‘authorized to’’ do so.
Stanger further testified that counsel for the plaintiff
had instructed him that he could ‘‘assume’’ certain facts
that the plaintiff hoped to prove at trial and, in light of
those facts, opine as to the elements of legal malprac-
tice. For example, when counsel for the defendant
asked Stanger ‘‘[h]ow heinous’’ the hospital’s conduct
was in the prior action, Stanger replied, ‘‘[t]hat’s some-
thing that I look forward to understanding better. I’ve
been told to assume that it was heinous.’’ Stanger also
testified that counsel for the plaintiff had informed him
that, for the purposes of identifying the immoral, unethi-
cal, oppressive, or unscrupulous conduct that the hospi-
tal had committed in contravention of CUTPA; see Votto
v. American Car Rental, Inc., 273 Conn. 478, 484, 871
A.2d 981 (2005); he could ‘‘assume’’ that the hospital
had decided not to renew the plaintiff’s privileges due
to demands from other doctors who were ‘‘interested
in eliminating [the plaintiff from the hospital staff] for
inappropriate reasons.’’ Stanger, however, could not
identify with certainty the names of the other doctors11
or the ‘‘inappropriate reasons’’ for their wanting the
plaintiff’s privileges not to be renewed. Instead, Stanger
stated: ‘‘I just was told that there [were] inappropriate
reasons . . . .’’ When counsel for the defendant asked
Stanger to identify evidence of this allegedly unlawful
conduct, the following colloquy occurred:
‘‘[The Defendant’s Counsel]: What evidence is there
that [this allegedly immoral, unethical, oppressive, or
unscrupulous conduct occurred]?
‘‘[Stanger]: I’m sure it’s in those sixteen boxes . . . .
‘‘[The Defendant’s Counsel]: It’s in those sixteen
boxes that you’ve never looked at?
‘‘[Stanger]: Correct.’’
Stanger explained that, in his view, he need not ‘‘have
personal knowledge’’ of the facts pertinent to the prior
action; he simply needed to know of the facts that
‘‘[would] be proven at trial,’’ and he either had been
told by counsel for the plaintiff the pertinent facts he
should ‘‘assume’’ or had learned the pertinent facts by
reviewing the plaintiff’s allegations in the complaint
filed in the present action. When counsel for the defen-
dant asked Stanger whether, as an expert witness, he
believed it would be permissible to base his opinions
at trial solely on the facts represented to be true by
counsel for the plaintiff, Stanger replied, ‘‘[n]o. But the
good news is . . . by the time we get to the trial, then
. . . evidence [will have] come in . . . .’’
With respect to whether the plaintiff would have pre-
vailed had he brought a tortious interference with busi-
ness expectancies claim against the hospital in the prior
action, counsel for the defendant asked Stanger, ‘‘you
don’t have any way to divine for us how a tortious
interference claim would have turned out [in the prior
action] because you don’t know the [pertinent] facts [to
the prior action], correct?’’ Stanger replied, ‘‘[c]orrect.’’
With respect to whether the plaintiff would have pre-
vailed had he brought a CUTPA claim against the hospi-
tal in the prior action, counsel for the defendant asked
Stanger, ‘‘with respect to an unadvanced CUTPA claim,
you don’t have any opinions at this moment that such
a claim would have been successful?’’ Stanger replied,
‘‘I’m waiting to see other evidence.’’ Stanger later agreed
when asked if he believed that ‘‘the evidence [would]
establish that it was more likely than not that’’ the
defendant could have brought successfully a CUTPA
claim in the prior action because the defendant eventu-
ally commenced on the plaintiff’s behalf a separate
action, alleging a violation of CUTPA, against the hospi-
tal. With respect to the basis of Stanger’s opinion that
the plaintiff likely would have prevailed had he brought
a CUTPA claim against the hospital in the prior action,
the following colloquy occurred:
‘‘[The Defendant’s Counsel]: What unlawful acts did
[the hospital] commit vis-à-vis [the plaintiff]?
‘‘[Stanger]: I can’t enumerate them. I haven’t looked
at all the evidence.
‘‘[The Defendant’s Counsel]: Give me one. I’m not
asking you to enumerate them. Give me one unlawful
act on the part of [the hospital].
‘‘[Stanger]: I’m—I’ve been told that there are rules to
be followed with regard—state of Connecticut laws that
are required to be followed with regard to a doctor
being dismissed or being treated as . . . the facts will
show [the plaintiff] was treat[ed] . . . .
‘‘[The Defendant’s Counsel]: What Connecticut laws?
‘‘[Stanger]: I wasn’t told them. I was told that I can
assume them.
‘‘[The Defendant’s Counsel]: You can assume that
they exist? Or assume—
‘‘[Stanger]: That the facts will—I don’t know which
particular law it was. . . . I can’t help you. . . .
‘‘[The Defendant’s Counsel]: You don’t know?
‘‘[Stanger]: —I’m sure [you’ll find out], when [you
complete] your depositions.’’ (Emphasis added.)
Stanger additionally stated that he was ‘‘told by [coun-
sel for the plaintiff] that there are certain specific regula-
tions regarding doctors that the state of Connecticut
has in terms of [employment] dismissal or negative
action. I don’t know the details. But [counsel for the
plaintiff] said they would be . . . relevant to a CUTPA
claim . . . [a]nd [counsel for the plaintiff] said he
would get me that information.’’ When counsel for the
defendant asked Stanger, ‘‘as you sit here today, you
don’t know what those regulations are or what they
say,’’ Stanger once again replied, ‘‘[c]orrect.’’ Finally,
with respect to Stanger’s opinions concerning damages,
the following colloquy took place:
‘‘[The Defendant’s Counsel]: Do you intend to give
an opinion on damages at the trial of this case . . .
[o]r is your engagement [as an expert witness limited
to] proving a deviation from the standard of care?
‘‘[Stanger]: I understand [that the] scope [of my
engagement as an expert witness] would include [opin-
ing as to] the damages, and it would be subject to my
hearing from other [expert witnesses] who I may
rely upon.
‘‘[The Defendant’s Counsel]: What other [expert wit-
nesses]?
‘‘[Stanger]: That’s for . . . counsel [for the plaintiff]
to decide and to present to me. . . .
‘‘[The Defendant’s Counsel]: Have you advised [coun-
sel for the plaintiff] that it would be helpful to engage
[any other expert witnesses]?
‘‘[Stanger]: I’ve said to him that we may need some-
body on damages. That I need to understand the dam-
ages better . . . .
‘‘[The Defendant’s Counsel]: As you sit here today,
do you still believe . . . that [counsel for the plaintiff]
and [the plaintiff] may need [another expert witness to
provide an opinion as to] damages and that you need
to understand the damage analysis better in this case?
‘‘[Stanger]: It’s a—there’s a may in that. There’s not
a will. I think it’s possible, depending upon . . . the
evidence . . . . And when I have a chance to review
all or some of [the file], depending upon what I’m
authorized to do, before that decision can be made.
. . . [T]here’s multiple ways that that can go depending
upon what’s in those boxes and what the testimony is
of the two parties. I believe there’s damage here. The
amount of the damage is the thing that’s uncertain to
me.’’ (Emphasis added.)
Stanger also testified that he believed it was ‘‘likely
that . . . additional damages’’ would be available to
the plaintiff, aside from the damages the plaintiff had
obtained as a result of his successful breach of contract
claim against the hospital, but that he ‘‘would have to
[review] each of the decisions [in the prior action]’’ to
be sure. When counsel for the defendant asked Stanger
if a ‘‘fair synopsis’’ of his deposition testimony related
to damages was that Stanger ‘‘believe[d] that’’ damages
would have been available to the plaintiff, ‘‘but [he]
[could not] quantify them,’’ Stanger answered affirma-
tively.
On January 8, 2020, following the first day of Stanger’s
deposition, the defendant filed a supplemental memo-
randum of law in support of his motion for summary
judgment and motion to preclude Stanger’s expert testi-
mony. The defendant argued in his supplemental memo-
randum of law that, because Stanger had not reviewed
the file, he lacked sufficient knowledge concerning the
defendant’s representation of the plaintiff in the prior
action such that he could not opine as to whether the
defendant had committed legal malpractice in the prior
action. The defendant additionally argued that Stanger
had no independent opinion as to damages. The defen-
dant asserted that, because the plaintiff had disclosed
Stanger as an expert before Stanger had formed any
meaningful, relevant opinions about the defendant’s
representation of the plaintiff in the prior action, the
plaintiff had made the disclosure in bad faith.
On January 13, 2020, the defendant filed a supplemen-
tal motion to preclude the plaintiff from introducing
expert testimony at trial and a supplemental motion
for summary judgment. The defendant argued in his
supplemental motions that, because Stanger had testi-
fied during his deposition that he could not opine as
to whether the plaintiff would have prevailed had he
pursued a CUTPA claim or a tortious interference with
business expectancies claim against the hospital in the
prior action, the plaintiff could not meet his burden of
proof as to his claims of legal malpractice in the present
action. The plaintiff filed objections to the defendant’s
supplemental motions, as well as an affidavit from
Stanger dated January 20, 2020.
In his affidavit, Stanger stated that, in his opinion, the
defendant was required to comply with an applicable
standard of care in his representation of the plaintiff
in the prior action. He opined that, by failing to raise
a CUTPA or tortious interference with business expec-
tancies claim on behalf of the plaintiff in the prior
action, the defendant had failed to comply with that
standard of care. Stanger stated in his affidavit that
the plaintiff had ‘‘suffered [financial] injury, loss and
damage, for which [the defendant] is liable,’’ arising out
of the defendant’s failure to raise a CUTPA or tortious
interference with business expectancies claim. Stanger
averred several times in his affidavit that he based his
opinions on ‘‘[t]he facts [he] expected [would] be
asserted at trial . . . .’’ He also averred that he had
reviewed ‘‘the appellate decisions,’’ ‘‘the complaints,’’
and ‘‘portions of the present proceedings.’’ In his affida-
vit, however, Stanger did not opine that the plaintiff
would have prevailed had he brought a CUTPA or tor-
tious interference with business expectancies claim
against the hospital in the prior action. Likewise,
Stanger did not to any reasonable degree of specificity
aver to an amount of damages that the plaintiff would
have recovered above and beyond the $258,610 plus
costs he recovered on the breach of contract count;
see Ulbrich v. Groth, 310 Conn. 375, 411, 78 A.3d 76(2013) (‘‘CUTPA was intended to provide a remedy that
is separate and distinct from the remedies provided
by contract law when the defendant’s contractual
breach was accompanied by aggravating circum-
stances’’ (emphasis added)); had he prevailed against
the hospital on a claim of CUTPA violations or tortious
interference with business expectancies.
On January 21, 2020, two weeks before the trial was
scheduled to begin on February 4, 2020, the court heard
argument on the defendant’s motion to preclude expert
testimony and motion for summary judgment.12 Counsel
for the plaintiff contended that, because Stanger’s depo-
sition was incomplete at that time, the court could not
consider Stanger’s testimony in considering the defen-
dant’s motions. The court subsequently ordered that
Stanger’s deposition be completed on Wednesday, Janu-
ary 29, 2020, after confirming that counsel for both
parties were available on that date. The court continued
argument on the defendant’s motions to Friday, January
31, 2020, four days before trial was scheduled to com-
mence.
On Tuesday, January 28, 2020—the day before the
scheduled second day of Stanger’s deposition and three
days before trial was scheduled to commence—counsel
for the plaintiff notified counsel for the defendant that
Stanger was unavailable to be deposed the following
day. The plaintiff also filed a motion for relief, in which
he requested that the court allow Stanger’s deposition
to take place at a later date because Stanger was on
vacation. The defendant subsequently filed an objection
to the plaintiff’s motion. The plaintiff additionally
moved for a continuance of the trial date. On January
30, 2020, the defendant filed a supplemental memoran-
dum of law in support of his motion to preclude expert
testimony and motion for summary judgment, in which
he argued that the plaintiff had violated the court’s
January 21, 2020 order requiring Stanger to appear for
the continued deposition on January 29, 2020, and that
preclusion of Stanger’s testimony was a proportional
sanction in accordance with Practice Book § 13-4.
On Friday, January 31, 2020, on which date argument
on the defendant’s motion to preclude expert testimony
and motion for summary judgment was continued,
counsel for the plaintiff once again argued that the court
could not consider the incomplete deposition testimony
of Stanger. The court, Genuario, J., granted the plain-
tiff’s motion for a continuance and continued the trial
date to October 6, 2020.
The second day of Stanger’s deposition eventually
took place on February 12, 2020. Counsel for the plain-
tiff asked Stanger whether his opinions were based on
‘‘reasonable legal probabilities’’ that he had deduced
from his experience as an attorney, and Stanger
answered affirmatively. Stanger, however, also testified
that, although two months had passed between the first
and second days of his deposition, he still had not read
the file, aside from ‘‘skim[ming] a few’’ items and
‘‘review[ing] pieces’’ of select materials. He additionally
testified that he had not reviewed the communications
between the parties, read the hospital bylaws—aside
from the portions of the bylaws that either the plaintiff
had included in the complaint in the prior action and
were included in the decisions from that action that he
had reviewed—or reviewed any of the defendant’s bills
from the defendant’s representation of the plaintiff in
that action.
Stanger explained that counsel for the plaintiff had
sent him a letter several weeks prior to the second day
of his deposition listing certain materials within the file
that Stanger should review before the second day of
his deposition and the start of trial. Stanger, however,
explained that he had not reviewed these materials, or
others in his possession, because counsel for the plain-
tiff had not authorized him to do so. Specifically,
Stanger testified:
‘‘[Stanger]: . . . I have got all these piles of paper
. . . of the various parts of the file . . . . I just flipped
through them to see what’s there.
‘‘[The Defendant’s Counsel]: Did you read them?
‘‘[Stanger]: I did not. I just breezed through them. I
skimmed a few. . . .
‘‘[The Defendant’s Counsel]: Have you reviewed [the]
boxes and boxes of [materials from the file]?
‘‘[Stanger]: I have reviewed pieces of [them] . . . .
‘‘[The Defendant’s Counsel]: . . . [A]m I to under-
stand that [the] letter [from counsel for the plaintiff]
[was] your authorization to look at . . . specific boxes
and . . . specific items in those boxes?
‘‘[Stanger]: That’s not how I understood it.
‘‘[The Defendant’s Counsel]: Okay, then how did you
understand it?
‘‘[Stanger]: I understood it as, this is a foreshadow
of what is to come, and that I will be told when I am
authorized to dig in deeply.
‘‘[The Defendant’s Counsel]: So, as we sit here today,
you still have not been authorized to dig in deeply,
correct?
‘‘[Stanger]: Correct. . . .
‘‘[The Defendant’s Counsel]: . . . [W]hen you got
this list [in the letter] from [counsel for the plaintiff] a
couple [of] weeks ago . . . [d]id you look at all of these
things on this list?
‘‘[Stanger]: Well, I certainly looked at the list and I
clicked through the different folders [in the electronic
version of the file] . . . . [J]ust glancing at it, I thought
what I was facing . . . was a couple thousand pages
. . . . [With respect to any of the electronic folders
within the file] that had subfolders . . . I . . . shut
down the printing [of those materials].
‘‘[The Defendant’s Counsel]: Why?
‘‘[Stanger]: Because I was told not to spend a lot of
time on this.
‘‘[The Defendant’s Counsel]: Who told you that?
‘‘[Stanger]: [Counsel for the plaintiff’s] office.
‘‘[The Defendant’s Counsel]: What kind of limitation
did [counsel for the plaintiff] give you?
‘‘[Stanger]: The limitation that I understood that I was
under was [that] the opinion that [I have been] giving
[was] sufficient for the purposes of the deposition. That
[counsel for the plaintiff] will be able to present the
evidence at the time that it’s needed that provides the
factual basis for the claims made in the complaint. And
just like any expert, I am to rely upon the actual facts
that are proven in court. . . .
‘‘[The Defendant’s Counsel]: . . . [D]id you review
most of [the items delineated in the letter from counsel
for the plaintiff]?
‘‘[Stanger]: . . . It depends on how you’re defining
review. Did I take a look at the size of the paper and
think about whether I am going to read these thor-
oughly—yes. Did I skim through looking at a page here
and there and looking at different things—yes. Did I
keep records of that—no.
‘‘[The Defendant’s Counsel]: Okay, but in your skim-
ming through, I mean, you said to me that you were
told not to spend a lot of time on this, right?
‘‘[Stanger]: Right.
‘‘[The Defendant’s Counsel]: And [counsel for the
plaintiff] told you that?
‘‘[Stanger]: Correct.
‘‘[The Defendant’s Counsel]: Did [counsel for the
plaintiff] tell you that before or after he sent you [the]
letter . . . ?
‘‘[Stanger]: After.’’ (Emphasis added.)
When counsel for the defendant asked Stanger
whether, at any point, Stanger substantively had
reviewed the items listed in the letter, Stanger
answered, ‘‘[i]f by substantive review, you mean looking
through [the items] in a thorough way, taking notes,
considering how I [would] use them in opinions so that
I could recite . . . [the] page and chapter and what-
ever,’’ then he had not substantively reviewed the items,
but that he ‘‘did spend some time on a couple of areas
. . . .’’ Stanger also testified that counsel for the plain-
tiff never gave him the ‘‘green light’’ to conduct more
than a cursory review of the files listed in the letter.
Nonetheless, Stanger opined that the hospital had
violated CUTPA by failing to provide the plaintiff with a
hearing before declining to renew his hospital privileges
because, according to Stanger, ‘‘the law generally pro-
vides for that kind of hearing if a doctor is being found
to have lost [his] privileges,’’ and, thus, the defendant
should have asserted on behalf of the plaintiff a CUTPA
claim against the hospital in the complaint in the prior
action. Stanger then stated that a statute required that a
hearing be held before the Department of Public Health
before a hospital decided to decline to renew a doctor’s
privileges. When counsel for the defendant asked
Stanger to identify the statute, Stanger stated that he
had ‘‘looked it up . . . in the [previous] week’’ but that
he did not have a copy of it in his personal file. Ulti-
mately, he could not identify the statute, outside of
stating, ‘‘I think 20D and E comes to mind, but that’s
not the title. . . . [S]omething dash 20D and E,’’ until
counsel for the plaintiff ‘‘refresh[ed] [Stanger’s] recol-
lection’’ by providing him the statutory sections.13 None-
theless, Stanger could not articulate how, by statute,
the hearing must be conducted. Stanger also testified
that he was unaware of any decisions of our Supreme
Court, this court, or the Superior Court in which a
hospital’s failure to provide a hearing to a doctor before
his privileges were not renewed was determined to be
a violation of CUTPA.
Stanger further opined that the plaintiff likely would
have prevailed had he brought a CUTPA claim against
the hospital in the prior action, and, in connection with
his opinion, Stanger theorized that ‘‘unfair motives’’
underpinned the hospital’s decision not to renew the
plaintiff’s privileges and that the hospital had acted
in bad faith in deciding not to renew the plaintiff’s
privileges. When, however, counsel for the defendant
asked Stanger to explain ‘‘everything [he knew] about
[the hospital’s] unfair motives and [to identify] the evi-
dence in [his personal] file of those motives,’’ Stanger
stated that he did not ‘‘believe [it was his] responsibility
to do’’ so and that he believed that, at trial, counsel for
the plaintiff would present evidence of the hospital’s
improper motives. Additionally, when counsel for the
defendant asked Stanger whether he had ‘‘any evidence
. . . that show[ed] bad faith conduct [committed by
the hospital] vis-à-vis [the plaintiff], other than the fact
that [the hospital] did not hold a hearing,’’ Stanger
replied, ‘‘I believe that I probably do have that evidence
in the . . . boxes [of materials] . . . that the [p]laintiff
will make part of his case [at trial] . . . . It was repre-
sented to me that . . . [the plaintiff would] present
. . . this evidence, and I was asked to assume that
fact.’’ Stanger then stated that he ‘‘[did not] recall having
been shown’’ any actual evidence. Stanger additionally
testified that, if the plaintiff had prevailed on a CUTPA
claim, he likely would have recovered $258,000 tre-
bled—approximately three times the amount he had
recovered in the prior action. In support of this opinion,
Stanger testified that he estimated that the total amount
would be trebled because the total trebled amount
‘‘seemed like a reasonable number for a judge to do in
this case.’’ He further opined that the plaintiff addition-
ally would have recovered attorney’s fees, which he
estimated totaled $800,000—despite not reviewing the
defendant’s bills for his representation of the plaintiff
in the prior action.14 Ultimately, Stanger testified that
he had based his opinions on his review of the decisions
of our Supreme Court, this court, and the Superior
Court in the prior action and the allegations made in the
plaintiff’s complaint in the prior action, which Stanger
‘‘accept[ed] . . . as . . . true . . . .’’
On February 25, 2020, after the conclusion of Stang-
er’s deposition, the defendant filed an additional memo-
randum of law in support of his motion to preclude
expert testimony and motion for summary judgment in
which he argued that, despite Stanger’s having had two
additional months to prepare for the second day of the
deposition, Stanger remained ignorant as to the facts
of the prior action. On August 25, 2020, the court, Hon.
Edward T. Krumeich II, judge trial referee, held a
remote hearing on the defendant’s motion to preclude
expert testimony and motion for summary judgment.
In a memorandum of decision dated September 1,
2020, the court granted the defendant’s motion to pre-
clude Stanger’s testimony and motion for summary
judgment. The court first determined that Stanger
lacked the requisite factual predicate to opine as to the
legal malpractice element of causation—specifically,
that the plaintiff likely would have prevailed on CUTPA
and tortious interference with business expectancies
claims had he brought them against the hospital in the
prior action. The court also determined that Stanger
lacked the factual predicate to opine as to the legal
malpractice element of damages and to estimate the
damages that the plaintiff would have been able to
recover, above and beyond the $258,610 plus costs he
recovered on the breach of contract count, had he
brought and prevailed on CUTPA and tortious interfer-
ence with business expectancies claims in the prior
action.15 The court then concluded that preclusion of
expert testimony was a proper and proportional sanc-
tion to impose on the plaintiff. Because the plaintiff
was unable to meet his burden of presenting expert
testimony as to the elements of legal malpractice in
light of the court’s sanction precluding the plaintiff from
presenting expert testimony; see, e.g., Grimm v. Fox,
303 Conn. 322, 329, 33 A.3d 205 (2012) (‘‘[a]s a general
rule, for the plaintiff to prevail in a legal malpractice
case in Connecticut, he must present expert testimony
to establish the standard of proper professional skill or
care [an attorney must exercise]’’ (internal quotation
marks omitted)); see also Bozelko v. Papastavros, 323
Conn. 275, 285, 147 A.3d 1023 (2016) (‘‘expert testimony
also is a general requirement for establishing the ele-
ment of causation in legal malpractice cases’’); the court
concluded that summary judgment was proper.
In determining that Stanger lacked the factual predi-
cate to provide an expert opinion as to causation and
damages, the court reviewed the expert disclosure
dated October 18, 2019, Stanger’s affidavit, and the tran-
scripts from each day of Stanger’s deposition. Looking
first at the expert disclosure, the court noted that the
plaintiff set forth therein Stanger’s opinion that, by fail-
ing to bring the CUTPA and tortious interference with
business expectancies claims against the hospital on
behalf of the plaintiff in the prior action, the defendant
had violated the applicable standard of care; the plain-
tiff, however, failed to set forth therein any expert opin-
ion concerning the legal malpractice elements of causa-
tion and damages. The court noted that the plaintiff did
not supplement his expert disclosure to add any such
opinions. The court also concluded that the plaintiff
had failed to provide in the expert disclosure the factual
bases for Stanger’s opinions—‘‘if any’’—concerning lia-
bility, causation, and damages.
The court similarly determined that Stanger’s affida-
vit failed to set forth an expert opinion as to causation
and damages. The court stated, ‘‘[t]here is no opinion
[set forth in Stanger’s affidavit] . . . as to the basis for
and viability of . . . [a] CUTPA claim and [a tortious]
interference [of business expectancies] claim,’’ had they
been brought in the prior action. As to damages, the
court continued, Stanger merely had provided a conclu-
sory statement that the plaintiff had suffered financial
harm and damage. Regarding the factual basis for Stang-
er’s opinions, the court noted that Stanger had averred
that he had based his opinions on ‘‘some of the facts [he]
expected [would] be brought out at trial,’’ as opposed
to facts that he himself had gleaned from the record.
(Internal quotation marks omitted.) Further, the court
noted that Stanger had reviewed only ‘‘limited and selec-
tive’’ materials—‘‘the appellate decisions, the com-
plaints and portions of the present proceedings’’—
before providing his opinions. (Internal quotation
marks omitted.)
Turning to the first day of Stanger’s deposition, the
court noted that Stanger had admitted that he lacked
knowledge about the prior action and had relied on the
representations of counsel for the plaintiff as to what
the plaintiff ‘‘hoped to prove at trial’’ instead of
reviewing the record. The court highlighted Stanger’s
testimony that counsel for the plaintiff did not authorize
Stanger to review the file and, consequently, Stanger
had not done so. Finally, the court concluded that
Stanger had provided no opinion as to whether the
plaintiff would have prevailed had he brought a CUTPA
or tortious interference with business expectancies
claim against the hospital in the prior action, or as
to damages. By contrast, Stanger had testified that he
would have to rely on the opinion of another expert to
provide an opinion as to damages.
With respect to the second day of Stanger’s deposi-
tion, the court noted that counsel for the plaintiff once
again had failed to authorize Stanger to review the file
and, instead, had ‘‘caution[ed] [Stanger] not to spend
. . . too much time reviewing the [file] to prepare for
the deposition . . . .’’ Consequently, the court
explained, ‘‘Stanger curtailed his review and remained
largely ignorant of’’ the facts pertinent to the prior
action and instead based his opinions ‘‘on hypothetical
facts that [the] plaintiff [purportedly] hoped to [prove]
at trial.’’ As the court noted, ‘‘Stanger testified that his
opinions [were] based on his belief [that] the facts
alleged in the [plaintiff’s] complaint in the [prior action]
would have supported’’ a CUTPA claim and that the
claim would have been successful so long as ‘‘there
was evidence to support’’ it. Likewise, the court noted,
Stanger admitted that he had completed ‘‘limited
research’’ with respect to the applicable law. The court
thus concluded that, to the extent Stanger had opined
as to the essential elements of a legal malpractice claim,
Stanger lacked the necessary factual basis to provide
expert testimony and his opinions were ‘‘untethered to
facts’’ in the record.
The court next noted that it was ‘‘mindful’’ that the
decision to preclude the plaintiff from presenting expert
testimony pursuant to Practice Book § 13-4 would be
a ‘‘severe sanction that [would] doom [the] plaintiff’s
case . . . .’’ The court, however, explained that, pursu-
ant to § 13-4 (h), the sanction of preclusion, ‘‘including
any consequence thereof on the [plaintiff’s] ability to
prosecute . . . [his] case, [was] proportional to [the
plaintiff’s] noncompliance’’ with the disclosure require-
ments of § 13-4, and the plaintiff’s noncompliance could
not ‘‘adequately be addressed by a less severe sanction
or combination of sanctions.’’ Practice Book § 13-4 (h).
With respect to proportionality, the court concluded
that the sanction of preclusion was proportional to the
plaintiff’s noncompliance with the disclosure require-
ments set forth in Practice Book § 13-4. In so conclud-
ing, the court noted that the plaintiff’s disclosure had
failed to set forth any expert opinion as to the legal
malpractice elements of causation and damages, and
the plaintiff did not at any point supplement the disclo-
sure to add such opinions. See Practice Book § 13-4 (b)
(requiring a party to ‘‘disclos[e] . . . [the] expert wit-
nesses . . . [whom the party] may . . . [call] . . . to
testify . . . at trial’’ and requiring disclosure to include
‘‘the expert opinions to which the witness is expected
to testify’’). The court determined that the plaintiff had
‘‘ample opportunity’’ throughout the duration of the
pending action to ‘‘disclose an expert [witness who
was] prepared to’’ provide an informed expert opinion
as to ‘‘the central issues’’ of the case, including causa-
tion and damages, based on his independent review of
the record of the prior action. Instead, and before
Stanger had received the file from the prior action, the
plaintiff disclosed Stanger as the sole expert witness
he planned to call to testify at trial. After he filed the
disclosure and provided Stanger the file in November,
2019, the plaintiff then ‘‘delay[ed] and limit[ed] . . .
Stanger’s review of the [file]’’ through both days of
Stanger’s deposition. As a result, throughout the pen-
dency of the action, Stanger possessed only a cursory
understanding of the facts of the prior action and based
his opinions on his assumptions and the allegations that
counsel for the plaintiff assured him would be proven
at trial. The court thus determined that the plaintiff had
failed to disclose to the defendant the factual substance
on which Stanger based his opinions, in contravention
of the disclosure requirements set forth in § 13-4. See
Practice Book § 13-4 (b) (requiring a party to ‘‘disclos[e]
. . . [the] expert witnesses . . . [whom the party] may
. . . [call] . . . to testify . . . at trial’’ and requiring
disclosure to include ‘‘the substance of the grounds for
each expert opinion’’).
The court determined that Stanger’s lack of prepara-
tion, and the plaintiff’s contributions thereto, prevented
the defendant from ascertaining what Stanger likely
would opine at trial. The court noted that ‘‘[the] plain-
tiff’s plan appeared to be to delay educating [Stanger]
until trial and to delay [Stanger from] review[ing] and
analy[zing] [the] material evidence until trial . . . .’’
The court emphasized that such a strategy could have
resulted in further delay of the trial date or caused
the defendant to be ambushed by a ‘‘newly informed
expert’’ witness at trial. The court recognized that,
between May 14, 2015, the date on which the present
action was commenced, and September 1, 2020, the
date of the court’s memorandum of decision on the
defendant’s motions, the trial date was scheduled and
rescheduled eight separate times.16 The court thus con-
cluded that continuing the trial date ‘‘for the ninth time’’
to allow Stanger more time to review the file would
‘‘not [be] an adequate sanction,’’17 as such a continuance
would require that the defendant conduct additional
discovery in light of any additional expert opinions or
analysis and would be akin to ‘‘[r]ewarding [the plain-
tiff’s] strategy of unduly limiting expert preparation’’
and encouraging an expert witness to ‘‘parrot the plead-
ings without independent[ly] review[ing] and anal[yz-
ing] . . . the . . . [pertinent] evidence’’ from the
underlying action. For the same reasons, the court also
noted that it was ‘‘far too late’’ for the plaintiff to dis-
close another expert. The court, thus, determined that
the plaintiff’s noncompliance could not adequately be
addressed by a less severe sanction or combination of
sanctions. See Practice Book § 13-4 (h) (2).
Consequently, the court granted the defendant’s
motion to preclude the plaintiff from presenting expert
testimony at trial. Because the plaintiff would be unable
to prove his legal malpractice claims ‘‘[w]ithout [the]
admissible testimony [of] a competent expert’’ witness
as to the elements of legal malpractice, the court
granted the defendant’s motion for summary judgment
as to the plaintiff’s claims. Following the court’s deci-
sion, the plaintiff filed a motion to reargue the motion
to preclude expert testimony and motion for summary
judgment, which the court denied on September 22,
2020. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The plaintiff first claims that the court improperly
granted the defendant’s motion to preclude Stanger’s
testimony at trial. In connection with this claim, the
plaintiff argues that the sanction of preclusion was not
proportional to the plaintiff’s alleged noncompliance
with the disclosure requirements set forth in Practice
Book § 13-4 and that the noncompliance adequately
could have been addressed by a less severe sanction.
The plaintiff additionally contends that, in imposing
a sanction for failing to comply with the disclosure
requirements, the court improperly concluded that
Stanger’s opinions were not based on sufficient facts.
Before we address the merits of the plaintiff’s claim,
we first set forth the appropriate standard of appellate
review, an issue about which the parties disagree. The
plaintiff argues that, in accordance with this court’s
decision in Fortin v. Hartford Underwriters Ins. Co.,
139 Conn. App. 826, 59 A.3d 247, cert. granted, 308
Conn. 905, 61 A.3d 1098 (2013) (appeal withdrawn
November 26, 2014), we should exercise plenary review
over the trial court’s decision to preclude Stanger’s
testimony because the court considered the defendant’s
motion to preclude Stanger’s testimony in the same
proceeding in which it considered the defendant’s
motion for summary judgment. The defendant contends
that Fortin is distinguishable from the present case and
that we should review the court’s decision granting the
defendant’s motion to preclude Stanger’s testimony for
an abuse of discretion because, generally speaking,
‘‘[w]e afford our trial courts wide discretion in determin-
ing whether to admit expert testimony . . . .’’ Weaver
v. McKnight, 313 Conn. 393, 405, 97 A.3d 920 (2014).
In resolving this dispute, we first look to this court’s
decisions in DiPietro v. Farmington Sports Arena,
LLC, 123 Conn. App. 583, 2 A.3d 963 (2010), rev’d on
other grounds, 306 Conn. 107, 49 A.3d 951 (2012), and
Fortin v. Hartford Underwriters Ins. Co., supra, 139
Conn. App. 826. In DiPietro, the plaintiff’s minor daugh-
ter injured her ankle while playing soccer at an indoor
soccer facility operated by the defendants. DiPietro v.
Farmington Sports Arena, supra, 585–86. The plaintiff
initiated separate actions against the defendants, alleg-
ing that the defendants negligently had installed and
maintained the carpet that covered the facility’s floor,
creating an unreasonably dangerous surface on which
to play soccer. Id., 586–87. The defendants filed motions
for summary judgment as to the plaintiff’s actions,
claiming that there was no genuine issue of material fact
as to, inter alia, the applicable duty that the defendants
owed—which this court clarified on appeal was ‘‘the
duty to provide and to maintain [their] premises in a
reasonably safe condition’’; id., 619; and whether the
defendants had breached that duty. Id., 587, 619. In
opposition, the plaintiff submitted the deposition testi-
mony and affidavit of an expert witness, who opined
that the carpeted surface was unreasonably dangerous.
Id., 605–606.
In its consideration of the defendants’ motions for
summary judgment, the trial court determined that the
expert witness’ testimony was inadmissible because the
expert lacked the requisite personal knowledge about
the case to render an expert opinion of substantial
value. See id., 609. Having determined that the testi-
mony of the expert witness was inadmissible, the court
granted the defendants’ motions for summary judgment
because, among other reasons, ‘‘expert testimony was
required to establish the . . . applicable . . . [duty of
the defendants as it pertained to the safety of the] indoor
soccer facility and the breach thereof . . . .’’ Id., 609–
10.
On appeal, this court ‘‘consider[ed] [its] scope of
review of the question of the admissibility of [the expert
witness’] testimony in [the] summary judgment pro-
ceeding . . . .’’ Id., 610. This court stated, ‘‘[o]rdinarily,
a trial court’s ruling on the admissibility of an expert’s
testimony at trial is subject to the deferential scope of
review of abuse of discretion. . . . That scope of
review does not apply, however, [if] the trial court has
excluded such testimony in connection with a sum-
mary judgment proceeding.’’ (Citation omitted; empha-
sis added.) Id. This court explained, ‘‘[i]t is well settled
that our scope of review of a trial court’s determination
on a motion for summary judgment is plenary. . . . [In
a case], as here, [in which] the trial court ruled the
expert’s testimony inadmissible in the course of sum-
mary judgment proceedings, it would be inconsistent
with that plenary scope of review to subject a particular
subset of the trial court’s determinations in those pro-
ceedings, namely, the admissibility of an expert’s
opinion, to the highly deferential abuse of discretion
scope of appellate review.’’ (Citation omitted; emphasis
added.) Id., 610–11. This court further noted, ‘‘because
the movant in a summary judgment proceeding has the
burden to show that there is no genuine issue of fact
and the facts are to be viewed in the light most favorable
to the nonmoving party, a trial court in such a proceed-
ing would be obligated to exercise its discretion in favor
of the nonmoving party’s offer of evidence. Similarly,
in applying our plenary scope of review to the question
of the admissibility of [the expert witness’] testimony,
the same considerations compel us to resolve any
doubts about that question in favor of admissibility.’’
Id., 611.18
In Fortin, the plaintiffs initiated a civil action against
the defendants, North River Insurance Company (North
River) and Hartford Underwriters Insurance Company
(Hartford). Fortin v. Hartford Underwriters Ins. Co.,
supra, 139 Conn. App. 829 and n.1. The plaintiffs alleged
that they had purchased liability insurance policies from
each of the insurance companies. Id., 830. Pursuant to
its policy, Hartford agreed to defend the plaintiffs in
specific legal actions and to pay certain damages
resulting therefrom, and, pursuant to its policy, North
River provided umbrella coverage above and beyond
the policy issued by Hartford. Id. The plaintiffs alleged
that they had been named as third-party defendants in
a separate action, which they contended ‘‘gave rise to
coverage under the policies’’; id.; but that Hartford
declined to provide representation to the plaintiffs or
to indemnify them for the financial obligations they
incurred as a result of the action, and North River
declined to participate in settlement negotiations in the
separate action on their behalf or to contribute moneys
toward the plaintiffs’ settlement obligation. Id., 830–31.
After the parties to the separate action settled, the plain-
tiffs subsequently sued the insurance companies for,
inter alia, breach of contract. Id., 831.
The plaintiffs disclosed an expert witness, whom they
asserted would opine as to, inter alia, the objective
reasonableness of the settlement amount paid by the
plaintiffs—an essential element of their case against
North River. Id., 832–33, 837. In response, North River
filed two motions: a motion to preclude the plaintiff’s
expert witness from testifying, in which it argued, inter
alia, that the opinion of the plaintiff’s expert witness
was based on insufficient facts, and a motion for sum-
mary judgment, in which it argued that the plaintiffs
were unable to prove an essential element of their
case—that the settlement amount was unreasonable.
Id., 832. ‘‘The [trial] court considered [North River’s]
motion to preclude in the context of a hearing on the
motion for summary judgment . . . [and ultimately]
granted both . . . motions.’’ Id., 832–33. The court
determined that the expert witness’ testimony was inad-
missible because ‘‘the plaintiffs were unable to demon-
strate that [the expert witness’] opinion was based on
sufficient facts and, thus, that his testimony would
assist the trier of fact in understanding the evidence
or in determining the objective reasonableness of the
settlement paid by the plaintiffs.’’ Id., 833. The court
consequently concluded that, because the plaintiffs had
failed to present expert evidence demonstrating that
the settlement amount was objectively reasonable, sum-
mary judgment in favor of North River was warranted.
See id.
On appeal, this court first set forth the applicable
standard of review. See id. This court noted that the
plaintiffs ‘‘urge[d]’’ it to apply the plenary standard of
review; id., 834 n.4; enunciated in DiPietro v. Farm-
ington Sports Arena, LLC, supra, 123 Conn. App. 610–
11, and North River urged it ‘‘not to apply the plenary
standard of review . . . .’’ Fortin v. Hartford Under-
writers Ins. Co., supra, 139 Conn. App. 834–35 n.4. This
court observed that, in DiPietro, it had concluded ‘‘that
its [determination as to the proper standard of review
in this context] was consistent with Connecticut’s sum-
mary judgment jurisprudence.’’ Id., 835 n.4. Thus, this
court determined, ‘‘DiPietro’s relevant [analysis] gov-
ern[ed] the legal standard by which a court should eval-
uate a motion to preclude in conjunction with a motion
for summary judgment.’’ Id., 836 n.4.
Because the trial court had ruled the expert’s testi-
mony inadmissible within the context of the summary
judgment proceedings, this court determined that the
proper standard of appellate review was plenary. See
id., 833–34. Accordingly, viewing the record ‘‘in the light
most favorable to the plaintiffs’’; id., 840; this court
concluded that the expert did not have an ‘‘adequate
factual basis [on] which to . . . [base an] opinion con-
cerning the reasonableness of the settlement,’’ and,
thus, the trial court ‘‘properly [had] precluded’’ the
expert witness’ opinion. Id.
Significantly, and as the plaintiff conceded during
oral argument before this court, the trial courts in
DiPietro and Fortin had not precluded the plaintiffs’
expert witnesses from testifying as a discovery sanction
for the plaintiff’s failure to comply with the disclosure
rules set forth in Practice Book § 13-4. By contrast, in
both DiPietro and Fortin, the courts precluded the
testimony of the plaintiffs’ expert witnesses solely
because the opinions of the plaintiffs’ expert witnesses
were not based on sufficient facts. See id., 833; DiPietro
v. Farmington Sports Arena, LLC, supra, 123 Conn.
App. 609.
In the present case, although the court determined
that Stanger’s opinions were not based on sufficient
facts, our thorough review of the court’s memorandum
of decision reveals that the court principally precluded
the plaintiff’s expert witness from testifying as a sanc-
tion for the plaintiff’s noncompliance with the disclo-
sure requirements set forth in Practice Book § 13-4. As
we have explained, the court stated in its memorandum
of decision that it was ‘‘mindful’’ that its decision to
preclude the plaintiff from presenting expert testimony
would be a ‘‘severe sanction . . . .’’ The court further
emphasized that the plaintiff had failed to comply with
the disclosure requirements set forth in § 13-4 and, con-
sequently, considered whether, pursuant to § 13-4 (h),
it should impose on the plaintiff the sanction of preclu-
sion of the expert testimony. The court specifically con-
sidered whether the sanction was ‘‘proportional to [the
plaintiff’s] noncompliance’’ with the disclosure require-
ments of § 13-4 and whether the plaintiff’s noncompli-
ance with the disclosure requirements otherwise could
be addressed adequately by a less severe sanction or
combination of sanctions. The court determined that
Stanger’s lack of knowledge as to the pertinent facts
of the prior action evidenced the discovery abuse in
which the plaintiff had engaged—specifically, eventu-
ally disclosing Stanger as an expert witness but keeping
Stanger uninformed as to the pertinent facts of the case
to prevent the defendant from conducting meaningful
discovery.
Ultimately, the court concluded that, in light of the
discovery abuses in which the plaintiff engaged, includ-
ing but not limited to his attempt to keep his own expert
uneducated about the facts underlying the matter, the
sanction of preclusion was proportionate to the plain-
tiff’s failure to timely comply with the requirements of
Practice Book § 13-4, and the plaintiff’s noncompliance
otherwise could not be addressed adequately by a less
severe sanction or combination of sanctions. Thus, the
court exercised its discretion in determining that the
sanction of preclusion was justified pursuant to § 13-4
(h). Accordingly, we conclude that the case before us
is distinguishable from DiPietro and Fortin because,
in the present case, the court treated in large part its
decision to preclude the plaintiff’s expert witness from
testifying as a sanction for the plaintiff’s failure to com-
ply with the disclosure requirements of § 13-4. To
review this decision on a plenary basis simply because
it was made at or about the time the court adjudicated
the defendant’s motion for summary judgment would
deprive the court of its discretion, or severely curtail the
court’s discretion, to govern effectively the discovery
process, supervise the conduct of the litigants, and man-
age its dockets. We therefore decline to extend DiPietro
and Fortin to the circumstances of this case.19
It is well accepted that ‘‘we . . . [review] the action
of the trial court in imposing sanctions for failure to
comply with its orders regarding discovery under a
broad abuse of discretion standard.’’ Millbrook Owners
Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 15, 776
A.2d 1115 (2001); see also Vitali v. Southern New
England Ear, Nose, Throat & Facial Plastic Surgery
Group, LLP, 153 Conn. App. 753, 757, 107 A.3d 422(2014) (trial court’s ‘‘decision to impose sanctions,’’
including sanction of ‘‘preclusion of expert testimony
. . . rests solely in the discretion of the court’’). ‘‘As
with any discretionary action of the trial court, appellate
review requires every reasonable presumption in favor
of the action, and the ultimate issue for us is whether
the trial court could have reasonably concluded as it
did. . . . In reviewing a claim that the court has abused
this discretion, great weight is due to the action of the
trial court and every reasonable presumption should
be given in favor of its correctness . . . . The determi-
native question for an appellate court is not whether it
would have imposed a similar sanction but whether the
trial court could reasonably conclude as it did given
the facts presented. Never will the case on appeal look
as it does to a [trial court] . . . faced with the need to
impose reasonable bounds and order on discovery.’’
(Citations omitted; internal quotation marks omitted.)
Millbrook Owners Assn., Inc. v. Hamilton Standard,
supra, 15–16. ‘‘Under an abuse of discretion standard,
a court’s decision must be legally sound and [the court]
must [have] honest[ly] attempt[ed] . . . to do what is
right and equitable under the circumstances of the law,
without the dictates of whim or caprice.’’ (Internal quo-
tation marks omitted.) Vitali v. Southern New England
Ear, Nose, Throat & Facial Plastic Surgery Group,
LLP, supra, 757.
We now turn to the merits of the plaintiff’s claim.
The plaintiff contends that the sanction of preclusion
was not proportionate to his noncompliance with the
expert disclosure requirements set forth in Practice
Book § 13-4 and that his ‘‘alleged’’ noncompliance ade-
quately could have been addressed by a less severe
sanction. The plaintiff argues that, at the time the court
imposed the sanction in its decision dated September
1, 2020, he had disclosed Stanger as an expert witness
in the expert disclosure he had filed on October 18,
2019. The plaintiff further asserts that the defendant
‘‘was not prejudiced’’ by any noncompliance on the
plaintiff’s part because the defendant ‘‘had a meaningful
opportunity to depose [Stanger as to] the basis [of
Stanger’s] opinions.’’ Finally, the plaintiff argues that,
as a less severe sanction, the court could have pre-
cluded ‘‘only the testimony and opinions that it believed
were not . . . based [on sufficient] . . . facts.’’ We are
not persuaded.
As we have explained, Practice Book § 13-4 (h) pro-
vides a trial court with the authority to ‘‘impose sanc-
tions on a party for [the party’s] failure to comply with
the’’ disclosure requirements set forth in § 13-4, such
as the requirement that a party must disclose the expert
witnesses it may call to testify at trial; see Practice
Book § 13-4 (a); or the requirement that a party must file
an expert disclosure identifying, inter alia, the expert
witness, the subject matter on which the expert is
expected to testify, and the substance of the grounds
for each expert opinion. See Practice Book § 13-4 (b)
(1). ‘‘An order precluding the testimony of an expert
witness, [however] may be entered only upon a finding
that: (1) the sanction of preclusion, including any conse-
quence thereof on the sanctioned party’s ability to pros-
ecute or to defend the case, is proportional to the non-
compliance at issue, and (2) the noncompliance at issue
cannot adequately be addressed by a less severe sanc-
tion or combination of sanctions.’’ Practice Book § 13-4
(h). As our Supreme Court has reiterated, ‘‘the sanction
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.’’ Millbrook Owners Assn., Inc. v. Hamilton Stan-
dard, supra, 257 Conn. 18. In considering whether the
sanction was proportional to the plaintiff’s failure to
comply with the disclosure requirements set forth in
§ 13-4 and his discovery abuse, we are guided by ‘‘the
factors [our Supreme Court] . . . ha[s] employed
when reviewing the reasonableness of a trial court’s
imposition of sanctions: (1) the cause of the [party’s]
failure to [comply with the disclosure rules and the
party’s discovery abuse], that is, whether it [was] due
to inability rather than the [wilfulness], bad faith or
fault of the [party] . . . (2) the degree of prejudice
suffered by the opposing party . . . and (3) which of
the available sanctions would, under the particular cir-
cumstances, be an appropriate response to the disobe-
dient party’s conduct.’’ (Internal quotation marks omit-
ted.) Lafferty v. Jones, 336 Conn. 332, 375, 246 A.3d
429 (2020), cert. denied, U.S. , 141 S. Ct. 2467,
209 L. Ed. 2d 529 (2021).
We also note that, pursuant to § 7-2 of the Connecticut
Code of Evidence, ‘‘[a] witness qualified as an expert
by knowledge, skill, experience, training, education or
otherwise may testify in the form of an opinion or other-
wise concerning scientific, technical or other special-
ized knowledge, if the testimony will assist the trier of
fact in understanding the evidence or in determining a
fact in issue.’’ ‘‘Expert testimony should be admitted
when: (1) the witness has a special skill or knowledge
directly applicable to a matter in issue, (2) that skill or
knowledge is not common to the average person, and
(3) the testimony would be helpful to the court or jury
in considering the issues.’’ (Internal quotation marks
omitted.) Weaver v. McKnight, supra, 313 Conn. 405–
406. ‘‘An expert may testify in the form of an opinion
and give reasons therefor, provided sufficient facts are
shown as the foundation for the expert’s opinion.’’
(Emphasis added.) Conn. Code Evid. § 7-4 (a). Thus,
‘‘[t]o render an expert opinion the witness must be
qualified to do so and there must be a factual basis
for the opinion.’’ (Emphasis added; internal quotation
marks omitted.) Weaver v. McKnight, supra, 406.
Accordingly, this court has stated, ‘‘[t]he essential facts
on which an expert opinion is based are an important
consideration in determining the admissibility of the
expert’s opinion.’’ Glaser v. Pullman & Comley, LLC,
88 Conn. App. 615, 624, 871 A.2d 392 (2005).
In a case in which ‘‘the factual basis of an [expert
witness’] opinion is challenged the question before the
court is whether the uncertainties in the essential facts
on which the opinion is predicated are such as to make
an opinion based on them without substantial value.’’
(Internal quotation marks omitted.) Wyszomierski v.
Siracusa, 290 Conn. 225, 244, 963 A.2d 943 (2009). For
example, this court has determined that the opinions
of a purported expert witness, whose testimony was
based on ‘‘speculation’’ and who ‘‘lack[ed] [sufficient]
personal knowledge . . . of the facts’’ on which he
based his opinions; Porter v. Thrane, 98 Conn. App. 336,
341, 908 A.2d 1137 (2006); were ‘‘without substantial
value.’’ Id., 340.
Turning to the present case, the court determined
that the plaintiff failed to comply with the disclosure
requirements set forth in Practice Book § 13-4 and,
instead, engaged in a course of conduct that rose to a
discovery abuse. The court noted that the plaintiff had
filed an expert disclosure on October 18, 2019, two
weeks after the October 4, 2019 deadline set by the
court’s scheduling order, and years after the previous
deadlines of August 8, 2016, and September 7, 2018. In
addition to the plaintiff’s historical failure to comply
with the court’s scheduling orders in filing the disclo-
sure, the court stated that, within the disclosure, the
plaintiff had failed to set forth any expert opinion as
to the legal malpractice elements of causation and dam-
ages, as required by Practice Book § 13-4 (b), and at
no point did the plaintiff supplement the disclosure to
add such opinions, despite having ‘‘ample opportunity’’
to do so during the pendency of the action. Likewise,
the plaintiff had failed to provide the substance of the
grounds for each of the disclosed opinions, as required
by § 13-4 (b). Instead, the plaintiff merely provided that
Stanger’s opinions would be ‘‘based [on] his knowledge
of the case from review of the [prior action] and his
experience as an attorney admitted in Connecticut.’’
More significantly, however, the court determined
that the plaintiff had committed what amounted to a
discovery abuse by engaging in a particular course of
‘‘gamesmanship’’ that prevented the defendant from
completing meaningful discovery. In particular,
although the plaintiff eventually ‘‘disclosed’’ Stanger
as an expert witness—albeit outside of each of the
deadlines to do so—counsel for the plaintiff prevented
Stanger from learning the pertinent facts of the prior
action during the entirety of his involvement as an
expert witness in the present action. The court noted
that, at the time the plaintiff had disclosed him as an
expert witness, Stanger had not been provided the file
from the prior action and, thus, could not have based
the expert opinion disclosed in the disclosure on his
independent review of the file. Additionally, in his affi-
davit dated January 20, 2020, Stanger averred that he
had reviewed only a few select materials before devel-
oping his opinions—specifically, the ‘‘appellate deci-
sions,’’ the ‘‘complaints,’’ and ‘‘portions of the present
[action]’’—and that his opinions largely were based on
‘‘the facts [he] expected [would be brought out] at trial,’’
as opposed to facts that he himself had gleaned from
independently reviewing the record.
The court confirmed, by reviewing the transcripts of
Stanger’s deposition, that Stanger possessed a limited
understanding of the prior action because counsel for
the plaintiff had curtailed Stanger’s review of the record
in the prior action. As the court stated, counsel for
the plaintiff had ‘‘authorized’’ Stanger to review only
a limited portion of the available materials before he
testified and instructed Stanger ‘‘not to spend . . . too
much time’’ on the matter. Consequently, Stanger admit-
ted during his deposition that he did not review a myriad
of materials associated with the prior action, including
the following: the transcripts from the depositions
taken in connection with the prior action, the trial tran-
scripts from the prior action—apart from ‘‘[seeing] one
page’’ from a deposition transcript, the date and the
content of which he could not identify when he was
deposed—the deposition exhibits, trial exhibits, discov-
ery materials, and expert reports from the prior action,
the hospital bylaws—apart from the portions reprinted
in the plaintiff’s complaint and the decisions he
reviewed—the minutes of the hospital meetings during
which the medical staff decided not to renew the plain-
tiff’s hospital privileges, the defendant’s bills from the
defendant’s representation of the plaintiff in the prior
action, and the communications between the parties in
the present action. Stanger also testified that he had
not spoken with any individuals about the prior action,
including the expert witnesses called to testify at trial
in the prior action, aside from counsel for the plaintiff.
As the court additionally noted, Stanger repeatedly
acknowledged during both days of the deposition that,
although he had received the file from the defendant’s
representation of the plaintiff in the prior action, which
he testified consisted of sixteen boxes of materials, he
did not ‘‘substantively review’’ any of the materials in
the file and would not do so until he was ‘‘authorized
to do’’ so by counsel for the plaintiff.
As the court further emphasized, Stanger testified
that he had based his opinions on the facts that counsel
for the plaintiff hoped to prove at trial and that counsel
for the plaintiff instructed Stanger he could ‘‘assume’’
existed, as opposed to the facts he gleaned from his
own independent review of the record. For example,
when counsel for the defendant asked Stanger ‘‘[h]ow
heinous’’ the hospital’s conduct was in the prior action,
Stanger replied, ‘‘I’ve been told to assume that it was
heinous’’; (emphasis added); and when counsel for the
defendant asked Stanger to identify the immoral, uneth-
ical, oppressive, or unscrupulous conduct that the hos-
pital allegedly had committed in contravention of
CUTPA, Stanger stated that he ‘‘just was told that’’ the
conduct existed and that he was ‘‘sure [that evidence
thereof was] in [the] [sixteen] boxes’’ of materials in
the file he did not review. Likewise, during the first day
of the deposition and in connection with his opinion
that it was ‘‘more likely than not’’ that the plaintiff could
have prevailed on a CUTPA claim had one been pursued
in the prior action, Stanger stated that counsel for the
plaintiff told him ‘‘that [he] [could] assume’’ that certain
laws—which he could not identify without his memory
being ‘‘refreshed’’ by counsel citing to him the statutory
sections—existed that the hospital had violated such
that a CUTPA claim would have been successful if it
had been brought against the hospital. As the court
noted, ‘‘Stanger testified that his opinions [were] based
on his belief that [the] facts alleged in the [plaintiff’s]
complaint in the [prior action] would have supported’’
a CUTPA claim and that such a claim would have been
successful, so long as ‘‘there was evidence to sup-
port’’ it.20
Additionally, the court explained that, although the
plaintiff eventually disclosed Stanger as his expert wit-
ness, the plaintiff ‘‘delay[ed] and limit[ed] . . . Stang-
er’s review of the [file]’’ and other salient materials such
that, on the two days on which he was deposed, Stanger
possessed only a cursory understanding of the relevant
facts of the prior action and was required to base his
opinion on his assumptions that counsel for the plaintiff
assured him would be proven at trial. Thus, from the
time Stanger was disclosed as an expert witness,
through his deposition, Stanger remained unapprised
of the pertinent facts of the prior action, at the behest
of counsel for the plaintiff, such that his expert opinion
lacked the necessary factual basis. See, e.g., Weaver v.
McKnight, supra, 313 Conn. 406 (‘‘[t]o render an expert
opinion the witness must be qualified to do so and there
must be a factual basis for the opinion’’ (emphasis
added; internal quotation marks omitted)). The court
stated that ‘‘[the] plaintiff’s plan appeared to be to delay
educating [Stanger as to the pertinent facts of the prior
action] until trial and to delay [Stanger from]
review[ing] and analy[zing] [the] material evidence until
trial . . . .’’ Accordingly, the court determined, the
plaintiff had engaged in a course of ‘‘gamesmanship’’
that ‘‘thwarted’’ the defendant’s ability to ascertain what
Stanger likely would opine at trial and, consequently,
impeded the defendant from completing ‘‘meaningful
discovery’’ with respect to the expert testimony the
plaintiff likely would elicit at trial.
Once it had identified the plaintiff’s noncompliance
and discovery abuse, the court considered whether the
sanction of preclusion, which it recognized was a
‘‘severe’’ sanction, was proportional to the plaintiff’s
noncompliance and discovery abuse. The court high-
lighted the fact that the trial date had been continued for
the eighth time—including to account for the plaintiff’s
failure to timely disclose an expert witness, which
caused the delay of the trial date from August 21, 2019,
to February 4, 2020.21 The court stated that the plaintiff
had ‘‘ample opportunity’’ during the lengthy pendency
of the present action to disclose a prepared, informed
expert or to ensure that Stanger was apprised of the
facts pertinent to the prior action such that Stanger’s
opinion, as represented in the disclosure, was informed
by sufficient facts and such that Stanger could provide
an informed expert opinion at the time he was deposed.
Instead, the court noted, the plaintiff engaged in a pat-
tern of game-playing by disclosing an expert witness
while simultaneously preventing that expert from
reviewing the file—to which the expert had access—
so that the defendant would remain uninformed as to
the factual and legal basis of the expert’s opinion until
trial. This strategy, the court stated, could have resulted
in further delay of the trial date to allow the defendant
the opportunity to conduct meaningful discovery or in
the defendant’s being ambushed by a ‘‘newly informed
expert’’ witness at trial. The court likened failing to
impose a sanction on the plaintiff to ‘‘[r]ewarding [the
plaintiff’s apparent] strategy of unduly limiting expert
preparation . . . .’’ To reward such a strategy, the
court noted, would be to ‘‘encourage’’ parties to disclose
uninformed expert witnesses ‘‘willing to parrot the
pleadings without independent[ly] review[ing] and ana-
l[yzing] . . . the . . . [pertinent] evidence’’ from the
prior action so that the party could comply technically
with the disclosure requirements while simultaneously
preventing the opposing party from engaging in mean-
ingful discovery as to the expert witness’ true opinion.
The court also concluded that a less severe sanction
or combination of sanctions could not address ade-
quately the plaintiff’s noncompliance. The court noted
that allowing Stanger more time to review the file, after
the trial date had been scheduled and rescheduled eight
times and in light of the fact that Stanger did not review
the file during the two months between the first and
second days of his deposition, would ‘‘not [be] an ade-
quate sanction’’ because such a continuance likely
would require the defendant to conduct additional dis-
covery once Stanger became apprised of the salient
facts of the case. The court further noted that continu-
ing the trial date to provide Stanger additional time
to review the file would have the practical effect of
‘‘[r]ewarding’’ the plaintiff’s gamesmanship. The court
also considered whether providing the plaintiff the
opportunity to disclose another expert would serve as
an adequate sanction and rejected the option, stating
that it was ‘‘far too late’’ to do so and, again, would
have the practical effect of ‘‘[r]ewarding’’ the plaintiff’s
pattern of game-playing.22
On the basis of the record before it, the court reason-
ably could have concluded, as it did; see Millbrook
Owners Assn., Inc. v. Hamilton Standard, supra, 257
Conn. 15; that the sanction of preclusion of expert testi-
mony was proportional to the plaintiff’s noncompliance
with the disclosure rules set forth in Practice Book
§ 13-4 and his pattern of gamesmanship, which rose to
a discovery abuse. The court likewise reasonably could
have concluded, as it did, that the plaintiff’s noncompli-
ance and discovery abuse could not adequately be
addressed by a less severe sanction or combination of
sanctions. Thus, we cannot conclude that the court
abused its discretion in so determining.
II
The plaintiff additionally claims that the court
improperly granted the defendant’s motion for sum-
mary judgment. In connection with this claim, the plain-
tiff first argues that, when it rendered summary judg-
ment in favor of the defendant, the court improperly
failed to consider Stanger’s deposition testimony. As
we have explained; see part I of this opinion; the court
properly precluded Stanger’s testimony as a sanction
for the plaintiff’s noncompliance with the disclosure
requirements set forth in Practice Book § 13-4 and the
plaintiff’s discovery abuses. Accordingly, we reject this
argument.
The plaintiff also contends that, even if the court
properly precluded Stanger’s testimony, genuine issues
of material fact nonetheless exist as to the legal mal-
practice elements of causation and damages. We note
that, in so arguing, the plaintiff nonetheless cites several
of the opinions that Stanger articulated during his depo-
sition and relies on these opinions as evidence of the
alleged genuine issues of material fact.
‘‘In general, the plaintiff in an attorney malpractice
action must establish: (1) the existence of an attorney-
client relationship; (2) the attorney’s wrongful act or
omission; (3) causation; and (4) damages.’’ (Internal
quotation marks omitted.) Grimm v. Fox, supra, 303
Conn. 329. As the plaintiff acknowledges in his principal
appellate brief, ‘‘[a]s a general rule, for the plaintiff to
prevail in a legal malpractice case in Connecticut, he
must present expert testimony to establish the standard
of proper professional skill or care [an attorney must
exercise]. . . . The requirement of expert testimony in
malpractice cases serves to assist lay people, such as
members of the jury . . . to understand the applicable
standard of care and to evaluate the defendant’s actions
in light of that standard.’’23 (Internal quotation marks
omitted.) Id., 329–30.
‘‘[E]xpert testimony also is a general requirement for
establishing the element of causation in legal malprac-
tice cases.’’ Bozelko v. Papastavros, supra, 323 Conn.
285.24 With respect to the causation element, ‘‘the plain-
tiff typically proves that the . . . attorney’s profes-
sional negligence caused injury to the plaintiff by pre-
senting evidence of what would have happened in the
[prior] action had the [attorney] not been negligent.
This traditional method of presenting the merits of the
[prior] action is often called the case-within-a-case.
. . . [T]he plaintiff must prove that, in the absence of
the alleged breach of duty by [his or] her attorney, the
plaintiff would have prevailed [in] the [prior] cause of
action and would have been entitled to judgment. . . .
To meet this burden, the plaintiff must produce evi-
dence explaining the legal significance of the attorney’s
failure and the impact this had on the [prior] action.’’
(Citations omitted; internal quotation marks omitted.)
Id., 284. Put differently, the plaintiff generally must pres-
ent expert testimony to ‘‘establish that the defendant’s
conduct legally caused the injury of which [he] com-
plain[s].’’ (Internal quotation marks omitted.) Cammar-
ota v. Guerrera, 148 Conn. App. 743, 750, 87 A.3d 1134,
cert. denied, 311 Conn. 944, 90 A.3d 975 (2014).
In the present case, the plaintiff alleged that the
defendant committed professional negligence by failing
to bring on his behalf claims of CUTPA violations and
tortious interference with business expectancies
against the hospital in the prior action. Thus, to prevail
in the present action, the plaintiff was required to
‘‘[present] the merits of the [prior] action,’’ or the ‘‘case-
within-a-case,’’ as to either of those causes of action.
(Internal quotation marks omitted.) Bozelko v. Papas-
tavros, supra, 323 Conn. 284. Put differently, the plain-
tiff was required to prove that, had the defendant
brought on his behalf claims of CUTPA violations and
tortious interference with business expectancies
against the hospital in the prior action, he would have
prevailed on either cause of action. See id.‘‘[W]e [first] set forth the legal standard that governs
CUTPA claims. . . . [General Statutes §] 42-110b (a)
provides that [n]o person shall engage in unfair methods
of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce. . . . [I]n
determining whether a practice violates CUTPA [our
Supreme Court has] adopted the criteria set out in the
cigarette rule by the [F]ederal [T]rade [C]ommission
for determining when a practice is unfair: (1) [W]hether
the practice, without necessarily having been pre-
viously considered unlawful, offends public policy as
it has been established by statutes, the common law,
or otherwise—in other words, it is within at least the
penumbra of some common law, statutory, or other
established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; (3)
whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding
of unfairness. A practice may be unfair because of the
degree to which it meets one of the criteria or because
to a lesser extent it meets all three. . . . Thus a viola-
tion of CUTPA may be established by showing either
an actual deceptive practice . . . or a practice
amounting to a violation of public policy. . . . In order
to enforce this prohibition, CUTPA provides a private
cause of action to [a]ny person who suffers any ascer-
tainable loss of money or property, real or personal, as
a result of the use or employment of a [prohibited]
method, act or practice . . . .’’ (Footnote omitted;
internal quotation marks omitted.) Ulbrich v. Groth,
supra, 310 Conn. 409–10. Thus, to meet his burden in
the present action of establishing the ‘‘case-within-a-
case’’ with respect to CUTPA; (internal quotation marks
omitted) Bozelko v. Papastavros, supra, 323 Conn. 284;
the plaintiff was required to establish the elements of
CUTPA, including ‘‘an actual deceptive practice . . .
or a practice amounting to a violation of public policy.’’
(Internal quotation marks omitted.) Ulbrich v. Groth,
supra, 409.
Although ‘‘a breach of contract may form the basis
for a CUTPA claim’’; id., 410; ‘‘not every contractual
breach rises to the level of a CUTPA violation.’’ (Internal
quotation marks omitted.) Naples v. Keystone Build-
ing & Development Corp., 295 Conn. 214, 228, 990 A.2d
326 (2010). ‘‘CUTPA was intended to provide a remedy
that is separate and distinct from the remedies pro-
vided by contract law when the defendant’s contractual
breach was accompanied by aggravating circum-
stances.’’ (Emphasis added.) Ulbrich v. Groth, supra,
310 Conn. 411. Thus, to meet his burden in the present
action of establishing the ‘‘case-within-a-case’’ with
respect to CUTPA; (internal quotation marks omitted)
Bozelko v. Papastavros, supra, 323 Conn. 284; the plain-
tiff was required to show that he was entitled to addi-
tional relief in the prior action, above and beyond the
damages award he received in connection with his pre-
vailing on the breach of contract claim. See Ulbrich v.
Groth, supra, 411. Further, because, ‘‘[i]n order to award
punitive or exemplary damages, evidence must reveal
a reckless indifference to the rights of others or an
intentional and wanton violation of those rights’’; (inter-
nal quotation marks omitted) id., 446; the plaintiff like-
wise was required to show that the defendant exhibited
a reckless indifference to, or an intentional and wanton
violation of, the plaintiff’s rights to establish that the
plaintiff would have received punitive or exemplary
damages in the prior action. See id.
We next set forth the legal standard that governs a
claim of tortious interference with business expectan-
cies. ‘‘[I]n order to recover for a claim of tortious inter-
ference with business expectancies, the claimant must
plead and prove that: (1) a business relationship existed
between the plaintiff and another party; (2) the defen-
dant intentionally interfered with the business relation-
ship while knowing of the relationship; and (3) as a
result of the interference, the plaintiff suffered actual
loss. . . . [I]t is an essential element of the tort of
unlawful interference with business relations that the
plaintiff suffered actual loss.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Hi-
Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20,
32–33, 761 A.2d 1268 (2000). Thus, to meet his burden
in the present action of establishing the ‘‘case-within-
a-case’’ with respect to tortious interference with busi-
ness expectancies; (internal quotation marks omitted)
Bozelko v. Papastavros, supra, 323 Conn. 284; the plain-
tiff was required to establish each of the aforemen-
tioned elements of tortious interference with business
expectancies. See id.Finally, we note that ‘‘summary judgment [is] proper
when [a] plaintiff alleging legal malpractice fails to
establish [his] claim by expert testimony.’’ (Internal
quotation marks omitted.) Grimm v. Fox, supra, 303
Conn. 330. ‘‘Our review of the trial court’s decision
to grant [a party’s] motion for summary judgment is
plenary.’’ (Internal quotation marks omitted.) Brooks v.
Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).
We have determined that the court properly pre-
cluded the admission of the testimony of Stanger. Con-
sequently, the plaintiff failed to present expert testi-
mony regarding several material issues, including the
applicable standard of care that the defendant owed to
the plaintiff in his representation of him and whether
he breached that standard of care; see Grimm v. Fox,
supra, 303 Conn. 329–30; by not initiating on behalf
of the plaintiff a CUTPA or tortious interference with
business expectancies claim against the hospital in the
prior action—particularly in light of the fact that the
plaintiff already had prevailed on a breach of contract
count against the hospital in the prior action and recov-
ered $258,610 plus costs. Further, the plaintiff was
unable to present expert testimony as to the causation
element; see Cammarota v. Guerrera, supra, 148 Conn.
App. 750; and to establish the ‘‘case-within-a-case’’
required to prevail on his legal malpractice claims.
(Internal quotation marks omitted.) Bozelko v. Papa-
stavros, supra, 323 Conn. 284. Put differently, the plain-
tiff could not present expert testimony as to the ele-
ments of CUTPA, including whether the defendant’s
actions qualified as ‘‘ ‘unfair’ ’’ pursuant to the cigarette
rule;25 Ulbrich v. Groth, supra, 310 Conn. 409; and
whether he was entitled to additional relief above and
beyond the damages he recovered for breach of con-
tract. See id., 446. The plaintiff likewise could not pres-
ent expert testimony as to the elements of tortious
interference with business expectancies. See Hi-Ho
Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 32–
33. In light of the fact that the plaintiff was unable to
present expert testimony as to the foregoing material
issues, which the plaintiff was ‘‘required [to present] to
establish a prima facie case of legal malpractice . . .
the [defendant was] entitled to judgment as a matter
of law.’’ (Citation omitted.) Grimm v. Fox, supra, 337.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 13-4, titled ‘‘Experts,’’ provides in relevant part: ‘‘(a) A
party shall disclose each person who may be called by that party to testify
as an expert witness at trial . . . .
‘‘(b) A party shall file with the court and serve upon counsel a disclosure
of expert witnesses which identifies the name, address and employer of
each person who may be called by that party to testify as an expert witness
at trial, whether through live testimony or by deposition. In addition, the
disclosure shall include the following information:
‘‘(1) . . . [T]he field of expertise and the subject matter on which the
witness is expected to offer expert testimony; the expert opinions to which
the witness is expected to testify; [and] the substance of the grounds for
each such expert opinion . . . .
‘‘(3) . . . [T]he party disclosing an expert witness shall, upon the request
of an opposing party, 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 within fourteen days prior to that expert’s deposi-
tion . . . .
‘‘(c) (1) Unless otherwise ordered by the judicial authority upon motion,
a party may take the deposition of any expert witness disclosed pursuant
to subsection (b) of this section . . . .
‘‘(h) A judicial authority may, after a hearing, impose sanctions on a
party for failure to comply with the requirements of this section. 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. . . .’’
2
The plaintiff also argues that the court improperly determined that
Stanger was not qualified to offer an expert opinion as to the elements of
legal malpractice or the likelihood of success of a claim under the Connecti-
cut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; or a
tortious interference with business expectancies claim had the plaintiff
brought either claim against the hospital in the prior action. As we note
later in this opinion; see footnote 15 of this opinion; it is unclear whether
the court, in its memorandum of decision, conflated the requirement that
an expert witness be qualified to render an expert opinion with the require-
ment that there be a factual basis for the opinion; see Conn. Code Evid.
§§ 7-2 and 7-4; Weaver v. McKnight, 313 Conn. 393, 406, 97 A.3d 920 (2014);
or, instead, whether the court independently determined that Stanger was
not qualified to render an expert opinion. Nonetheless, because we conclude
that the court properly precluded Stanger’s testimony on other grounds, we
need not consider whether the court improperly concluded that Stanger
was unqualified to offer expert testimony.
3
‘‘In general, the plaintiff in an attorney malpractice action must establish:
(1) the existence of an attorney-client relationship; (2) the attorney’s wrong-
ful act or omission; (3) causation; and (4) damages.’’ (Emphasis added;
internal quotation marks omitted.) Grimm v. Fox, 303 Conn. 322, 329, 33
A.3d 205 (2012).
4
The plaintiff additionally named as defendants in the prior action the
president of the hospital, certain hospital administrators, and certain hospital
physicians. See Gianetti v. Norwalk Hospital, 211 Conn. 51, 52 and n.1, 557
A.2d 1249 (1989).
5
Between March 11, 1987, the date of the release of the attorney trial
referee’s report, and July 18, 1993, the date on which the court accepted
the attorney trial referee’s report, the parties filed a joint motion for reserva-
tion of legal issues, pursuant to General Statutes § 52-235, arising out of
certain issues raised in the attorney trial referee’s report. Gianetti v. Norwalk
Hospital, supra, 211 Conn. 53 and n.2. In the motion, the parties sought
advice from this court as to certain questions of law. Id., 53 n.2. Our Supreme
Court ‘‘transferred [the matter] to itself on April 14, 1988’’; id.; and, on
April 25, 1989, released a decision in which it resolved the legal questions
presented by the parties. See id., 66–67. The matter subsequently was
returned to the trial court. See Gianetti v. Norwalk Hospital, Superior Court,
judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S (September 9,
in part, 266 Conn. 544, 833 A.2d 891 (2003).
6
In its decision released on May 15, 2012, our Supreme Court affirmed
this damages award. See Gianetti v. Norwalk Hospital, supra, 304 Conn. 819.
7
In his answer, the defendant raised one special defense—that the plain-
tiff’s claims of legal malpractice were time barred by the applicable three
year statute of limitations. See General Statutes § 52-577. On January 8,
2018, and after the case had been scheduled for trial, the defendant moved
for summary judgment, arguing that the plaintiff’s claims of legal malpractice
were time barred. The court denied the defendant’s motion for summary
judgment on June 12, 2018, on the procedural basis that the applicable
scheduling order required that motions for summary judgment be filed no
later than September 30, 2016, and the defendant had not filed with the
court a motion for permission to file his late motion for summary judgment,
despite the fact that the case already had been assigned for trial. See Practice
Book § 17-44 (‘‘[i]f no scheduling order exists but the case has been assigned
for trial, a party must move for permission of the judicial authority to file
a motion for summary judgment’’).
8
The defendant specifically argued that the plaintiff had failed to satisfy
the requirements set forth in Practice Book § 13-4 (a) and (b) (1). As we
have explained; see footnote 1 of this opinion; § 13-4 (a) requires a party
to disclose ‘‘each person who may be called by that party to testify as an
expert witness at trial.’’ Section 13-4 (b) (1) requires the party to file an expert
witness disclosure, in which the party must identify the expert witnesses
he may call and specify the ‘‘field of expertise and the subject matter on
which the witness is expected to offer expert testimony; the expert opinions
to which the witness is expected to testify; [and] the substance of the
grounds for each such expert opinion.’’
9
As the parties explained in a joint motion to modify the scheduling order
that the court, Genuario, J., granted on May 30, 2019, counsel for the plaintiff
in the present action, Attorney Michael Kogut, was suspended from the
practice of law on July 31, 2018. The plaintiff subsequently hired Attorney
Kenneth A. Votre to represent him in the present action, and Votre appeared
on the plaintiff’s behalf on October 25, 2018.
10
Stanger testified, however, that he merely ‘‘skimmed’’ one decision of
this court in the prior action.
11
When he was asked to identify the doctors, Stanger responded, ‘‘I
assume—again, assume—[the doctors are] the other defendants . . .
[named] in the complaint . . . filed’’ by the plaintiff in the prior action.
(Emphasis added.)
12
On January 17, 2020, the plaintiff filed a motion for a continuance of
the hearing on the defendant’s motions, as well as a case flow request
requesting the same. The court denied the plaintiff’s continuance motion
and case flow request on January 21, 2020.
13
Specifically, the following colloquy occurred between counsel for the
plaintiff and Stanger:
‘‘[The Plaintiff’s Counsel]: . . . I know when you were being [questioned
by counsel for the defendant], an issue came up about a state statute. Is
that correct?
‘‘[Stanger]: Two state statutes.
‘‘[The Plaintiff’s Counsel]: Okay, and I know you didn’t remember the
state statutes. If I told you it was [General Statutes §§] 20-13[d] and 20-
13[e], would that refresh your recollection? . . .
‘‘[Stanger]: . . . Yes, it does.’’
14
After confirming with Stanger that he had not reviewed any of the
defendant’s bills in the prior action, counsel for the defendant asked Stanger
whether ‘‘somebody [else had] told’’ Stanger that the defendant’s attorney’s
fees totaled $800,000. Stanger testified, ‘‘I think [the $800,000 value is] in
the complaint that was filed in [the present] action.’’
We note that, in his principal appellate brief to this court, the plaintiff
likewise asserted that, ‘‘[o]ver the course of the [pendency of the prior
action], [the plaintiff] paid [the defendant] over eight hundred thousand
dollars ($800,000) in legal fees, costs, and expenses . . . .’’ (Footnote omit-
ted.) To support this assertion, the plaintiff merely cited to the operative
complaint in the present action—namely, the allegation in his complaint
that, ‘‘over the course of [the pendency of the prior action], [the plaintiff]
was billed and paid the defendant nearly eight hundred thousand ($800,000)
dollars in legal fees, costs, and expenses.’’
15
The court also stated that Stanger ‘‘lack[ed] . . . knowledge concerning
the law to be applied to the facts relating to the CUTPA claim and . . .
general[ly] lack[ed] . . . experience litigating CUTPA claims.’’ It is unclear
whether, by this statement, the court concluded that Stanger was unqualified
to render expert opinions or instead conflated the requirements that an
expert witness be qualified ‘‘by knowledge, skill, experience, training, educa-
tion or otherwise’’; Conn. Code Evid. § 7-2; and that ‘‘there . . . be a factual
basis for the [expert witness’] opinion[s].’’ (Internal quotation marks omit-
ted.) Weaver v. McKnight, 313 Conn. 393, 406, 97 A.3d 920 (2014). Because
we conclude that the court properly determined that Stanger’s testimony
should be precluded on other grounds, we need not consider whether the
court properly determined that Stanger was unqualified to render expert
opinions, to the extent that it made such a finding. See footnote 2 of this opin-
ion.
16
Between May 14, 2015, and September 1, 2020, the court scheduled trial
for the following dates: April 25, 2017; November 28, 2017; July 16, 2018;
February 26, 2019; June 4, 2019; August 21, 2019; February 4, 2020; and
October 6, 2020.
17
Although the court recognized that ‘‘[s]ome of the delay [of the trial
date was] attributable to the substitution of [the plaintiff’s] counsel . . .
the delay of trial from August 21, 2019, to February 4, 2020,’’ was caused
by the plaintiff’s failure to timely disclose an expert.
18
Following the release of this court’s decision in DiPietro, our Supreme
Court ‘‘granted the defendants’ petition for certification to appeal . . . [as
to the following question: whether this court] properly rule[d] that plenary
review applied to the trial court’s decision concerning the admissibility
of expert testimony in a summary judgment motion . . . .’’ (Emphasis
added; internal quotation marks omitted.) DiPietro v. Farmington Sports
Arena, LLC, 306 Conn. 107, 111 n.2, 49 A.3d 951 (2012). Our Supreme Court,
however, ultimately ‘‘[did] not reach [this] certified [issue] because . . .
[it] conclude[d] that, despite the trial court’s stated concerns as to the
admissibility of the expert’s opinion, the court did consider [the expert’s
opinion] in ruling on the defendants’ motions for summary judgment but
found it to be substantively insufficient.’’ Id.19
We note that, in his appellate briefs to this court, the plaintiff additionally
argues that the trial court applied the wrong legal standard when it reviewed
the evidence in deciding the defendant’s motion to preclude Stanger’s expert
testimony. Specifically, the plaintiff asserts that, because the court decided
the defendant’s motion to preclude in connection with the defendant’s
motion for summary judgment, the court was required to construe ‘‘the facts
. . . in the light most favorable to [the plaintiff as] the nonmoving party
. . . [and] exercise its discretion in favor of the nonmoving party’s offer of
evidence.’’ (Internal quotation marks omitted.) Fortin v. Hartford Under-
writers Ins. Co., supra, 139 Conn. App. 834. Because we have concluded
that, unlike in Fortin and DiPietro, the court in the present case treated
its preclusion of Stanger’s testimony in large part as a sanction for the
plaintiff’s failure to comply with the expert disclosure requirements of Prac-
tice Book § 13-4, we conclude that the court in the present case was not
obligated to employ the standard governing a trial court’s decision on a
motion for summary judgment when it decided the defendant’s motion to
preclude Stanger’s expert testimony.
20
In light of Stanger’s deposition testimony, the court determined that
Stanger’s expert opinion lacked substantial value because it was ‘‘untethered
to facts’’ in the record. The plaintiff contends that the court improperly
determined that the plaintiff’s opinions were not based on sufficient facts.
The plaintiff specifically argues that Stanger testified during his deposition
that the materials he reviewed and on which he based his expert opinion—
specifically, the judicial decisions from the prior action and the allegations
contained in the plaintiff’s complaint in the prior action—provided him the
necessary factual basis from which to develop an informed expert opinion.
As we have explained, overwhelming evidence exists in the record to
support the court’s determination that Stanger possessed limited knowledge
of the pertinent facts of the prior action and that Stanger relied on the
representations made by counsel for the plaintiff, instead of independently
gleaning the pertinent facts from the record, in coming to his expert opinion.
Based on this overwhelming evidence, we conclude that the court reasonably
could have concluded, as it did, that Stanger’s opinions were not based on
sufficient facts. See Millbrook Owners Assn., Inc. v. Hamilton Standard,
supra, 257 Conn. 15. Thus, we cannot say that the court abused its discretion
by determining that ‘‘the uncertainties in the essential facts’’; (internal quota-
tion marks omitted) Wyszomierski v. Siracusa, supra, 290 Conn. 244; on
which Stanger based his opinions, rendered his opinions to be without
substantial value.
We note that, even if we were to exercise plenary review over this argu-
ment, we nonetheless would reach the same conclusion as did the trial
court. Significantly, we agree with the court that the evidence is clear that
Stanger failed to review the necessary materials to educate himself about
the facts of the prior action. Instead, Stanger accepted as true the allegations
made in the plaintiff’s complaint. Accordingly, Stanger lacked a substantial
factual basis on which to evaluate the merits of and opine as to the plaintiff’s
allegations of legal malpractice. See Conn. Code Evid. § 7-4 (a) (permitting
‘‘[a]n expert [to] testify in the form of an opinion . . . provided sufficient
facts are shown as the foundation for the expert’s opinion’’ (emphasis
added)).
21
The plaintiff argues in his principal appellate brief that the sanction of
preclusion was not proportional to his noncompliance because, when the
court released its decision on September 1, 2020, ‘‘there was no trial date
looming due to the’’ coronavirus pandemic. We acknowledge that, despite
the fact that the trial had been scheduled to commence on October 6, 2020,
jury trials were suspended at the time the court imposed the discovery
sanction on the plaintiff in its memorandum of decision due to the coronavi-
rus pandemic. Specifically, the Judicial Branch suspended civil jury trials
in March, 2020, through the end of the 2020 calendar year and into the 2021
calendar year.
The fact, however, that jury trials were suspended at the time the court
imposed the discovery sanction does not alter the reality that the court had
rescheduled the trial date eight times before the Judicial Branch suspended
civil jury trials in March, 2020. We note that the court specifically emphasized
that the trial date was delayed—before jury trials were suspended—from
August 21, 2019, to February 4, 2020, because of the plaintiff’s failure to
timely disclose an expert witness.
22
With respect to the plaintiff’s argument that the court could have pre-
cluded only the testimony and opinions it believed were not based on
sufficient facts, the court made clear that, in its view, Stanger’s opinions as
to several elements of legal malpractice—including causation—were not
based on sufficient facts. Thus, even if the court precluded only Stanger’s
opinions as to the legal malpractice elements, summary judgment still would
be proper because the plaintiff would be unable to prove the essential
elements of his case. See, e.g., Grimm v. Fox, supra, 303 Conn. 329 (‘‘[a]s
a general rule, for the plaintiff to prevail in a legal malpractice case in
Connecticut, he must present expert testimony to establish the standard
of proper professional skill or care [an attorney must exercise]’’ (internal
quotation marks omitted)); see also Bozelko v. Papastavros, supra, 323 Conn.
285 (‘‘expert testimony also is a general requirement for establishing the
element of causation in legal malpractice cases’’).
23
We note that ‘‘[t]here is an exception to [the] rule [requiring the plaintiff
to present expert testimony to establish the elements of legal malpractice]
. . . [if] there is such an obvious and gross want of care and skill that
neglect is clear even to a lay person. . . . Nevertheless, [t]he exception to
the need for expert testimony is limited to situations in which the defendant
attorney essentially has done nothing whatsoever to represent his or her
client’s interests.’’ (Citation omitted; emphasis added; internal quotation
marks omitted.) Grimm v. Fox, supra, 303 Conn. 330.
To the extent that the plaintiff argues generally in his principal appellate
brief that the exception to the rule requiring that he present expert testimony
applies in this case, at no point in his principal appellate brief does the
plaintiff contend that the defendant ‘‘essentially ha[d] done nothing whatso-
ever to represent his . . . client’s interests’’ in the prior action; (internal
quotation marks omitted) id.; such that this exception would be applicable.
Accordingly, we reject the plaintiff’s argument to the extent that he made it.
24
Our Supreme Court has recognized that ‘‘exceptions [to the requirement
that a plaintiff present expert testimony to establish the causation element
exist] in obvious cases’’; Bozelko v. Papastavros, supra, 323 Conn. 285; such
as in a case in which a New Jersey court determined that a plaintiff in a
legal malpractice action need not present expert testimony to establish that
an attorney ‘‘may not charge for work that has not been performed . . .
[or] to establish the causal connection between [an attorney’s] charge for
[legal representation] services [he had] not [yet] performed [for the plaintiff]
and [the plaintiff’s receipt of] lesser proceeds’’ from a settlement check.
Sommers v. McKinney, 287 N.J. Super. 1, 14, 670 A.2d 99 (App. Div. 1996);
see Bozelko v. Papastavros, supra, 285 n.12 (citing Sommers). The plaintiff
argues in his principal appellate brief that the issue of causation in the
present case ‘‘is within the realm of a jury’s ordinary knowledge.’’ (Internal
quotation marks omitted.) We disagree. Whether the plaintiff in the present
case would have prevailed had he pursued a CUTPA claim in the prior action
does not appear to fall within the ‘‘obvious’’ category of cases described by
our Supreme Court. Bozelko v. Papastavros, supra, 285.
25
We note that it is doubtful that Stanger’s testimony, had it not been
precluded from admission at trial as a sanction for the plaintiff’s noncompli-
ance and discovery abuse, would have been sufficient to establish this
element of CUTPA. During his deposition, Stanger was unable to articulate
the specific conduct in which the hospital had engaged that ‘‘offend[ed]
public policy . . . [was] immoral, unethical, oppressive, or unscrupulous
. . . or cause[d] substantial injury to consumers, [competitors or other
businesspersons]’’; (internal quotation marks omitted) Ulbrich v. Groth,
supra, 310 Conn. 409; and testified that counsel for the plaintiff instructed
him to ‘‘assume’’ that such conduct existed.